Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd.;; Evangeline Doosey-Shaw by her next friend Cate Doosey v Nigel Walsh & Complete Building Inspection Services Pty. Ltd.

In second proceedings, 2014/224312: Evangeline Doosey-Shaw by her next friend Cate Doosey (Plaintiff) Nigel Walsh (First Defendant/Cross-Claimant) Complete Building Inspection Services Pty. Ltd. (2nd Defendant/Cross-Claimant) Pacific International Insurance Pty Ltd (Cross-Defendant) Representation: Counsel (in both matters): G Hickey (Plaintiff) A Rogers (Defendant / Cross-Claimant) D Priestley SC (Cross-Defendant)

Solicitors (in both matters): Slater and Gordon (Plaintiff) Dribbus Kovacevic Lawyers (Defendant / Cross-Claimant) Moray & Agnew Solicitors (Cross-Defendant) File Number(s): 2014/224296; 2014/224312 Publication restriction: None

Judgment

1. There are two proceedings before the Court seeking damages for personal injury suffered by in the first a mother and in the second her daughter. They were heard consecutively on the question of liability. The mother's claim is for pure mental harm consequent of the injury suffered by her daughter.
2. In the first proceedings numbered 2014/224296, the plaintiff, Cate Doosey (Cate), sues by Amended Statement of Claim (leave to amend by consent granted on the first day of the hearing, 21 November 2016). The second defendant, Complete Building Inspection Services Pty. Ltd., is the alter ego of the first defendant, building inspector, Mr Nigel Walsh.
3. In the second proceedings numbered 2014/224312, the plaintiff's daughter Evangeline Shaw-Doosey (Eadie) sues by her mother Cate Doosey as Tutor. The issues concerning negligence of the defendants are identical.
4. In Cate's proceedings, the defendants rely upon a notation contained in the defendants' building inspection report both as founding a claim of Cate's contributory negligence and as excluding liability. By Second Cross-Claim in Eadie's proceedings, the defendants rely on the notation to seek indemnity from, Cate.
5. In each of the proceedings the defendants cross-claim against Pacific International Insurance Pty Ltd (Insurer) for breach of contract by failure to indemnify and pay the claim arising out of the contract of insurance.
6. Cate's and Eadie's cases allege that relying upon the pre-purchase building inspection report which Cate Doosey retained the defendants to provide, she completed the purchase of 11 Point Street, Bulli, in the State of New South Wales (Property), without causing any work to be done to the balustrade of a balcony because the report negligently did not identify any defect in that balustrade. Cate says that on the first day of her having her children at the new home, the balustrade failed causing Eadie to fall 2.57m to the concrete pavement below, where she was discovered seriously injured by Cate.
7. In Eadie's proceedings, I am to determine the question of liability only. I am informed that Eadie is now 13 years of age and in Year 7 at school. On 17 December 2011, when the accident occurred, she was 7 years of age and had completed Year 2. Eadie's injuries include a brain injury and assessment of damages in her case will occur at a later date.
8. At the opening of the hearing I was informed that insurance cover was denied. The cross-defendant insurer opposed an application made by other parties that the question whether the policy responded be determined first. The insurer's opposition to that course, I was assured by senior counsel, was that it would forensically disadvantage the insurer in the conduct of the hearing, and that the insurer had some questions for witnesses to be called in the primary proceedings, on the Cross-Claim. Relying on senior counsel's claim of forensic disadvantage, I refused the application that the Cross-Claim be determined first.

The Accident - In Brief

1. On 17 December 2011, 7 year old 31kg Eadie fell 2.57m from a balcony to the concrete pavement below when a baluster released at its bottom fixation and failed to restrain her. Cate found her daughter Eadie unconscious and unresponsive at the scene.

Historical Facts

1. Cate is a barrister practising in Wollongong. She is the mother of two children, the eldest being Isaac, born 30 April 2001 who is now in Year 9 at school, and the younger is Eadie born 5 January 2004.
2. After completing her Higher School Certificate in 1980, Cate worked in administrative roles including in the Public Service and with a Trade Union. In 1986, she commenced study toward her degree of Bachelor of Law at the University of New South Wales. She commenced employment as a solicitor in 1992 with the Australian Copyright Council where her role involved mainly advice work. This employment lasted approximately two years. Cate was next employed at the Aboriginal Legal Aid Service in Redfern where she remained for 14 years. In this work she was often involved in the practice of criminal law, including appearing for defendants often in relation to domestic disputes. In 2006, she was admitted as a barrister and became a member of the New South Wales Bar Association. In that year, she completed her reading in Sydney before moving to Wollongong at about Christmas 2006.
3. Cate had commenced a long-term relationship in about 1995 or 1996 with the father of her two children. The couple separated in about 2006 and remain living apart. Her ex-partner lives in Sydney, has the care of the children every second weekend, and half of holidays.
4. Prior to 2011, Cate practised three days per week almost exclusively in criminal law at the Wollongong Bar. When Cate was at work, Eadie was in child care.
5. By the commencement of 2011, Cate was practising full-time. Her practice was developing from Legal Aid-based criminal law to increasingly private work as her reputation grew. Private work paid more than Legal Aid work. She continued to develop a practice in Family Law work which part of her practice increased after her first year at the Bar in Wollongong. Primarily, her Family Law work has been for private clients with some Legal Aid work in the area of parenting disputes.
6. Cate said that in 2011, 60% of her practice was a substantial Family Law case involving the death of a child in which she appeared for a client (the mother) named Windeyer. The case occupied 90 hearing days that year.
7. Ms Windeyer was charged with manslaughter. Cate was separately retained to appear in her defence.

The Accident and its Effect on Cate

1. Cate moved into the Property on a weekend or mid-week before the settlement. The following weekend the children were with their father so Cate took the opportunity to set up the house.
2. Cate put furniture on the balcony including a faux cane L-shaped day bed and matching chairs and table. It was light furniture. She said it blew over in the wind.
3. On the Saturday following the school year finishing, the accident occurred. Cate does not recall the balcony having been used before the day of the accident. She does not recall the children having used the balcony before the day of the accident, and there had been no entertaining of children on the balcony before that day.
4. On that Saturday, Cate was working in the garden, and Eadie had two friends over and Isaac had one friend over playing in the pool for most of the morning.
5. After some time, Eadie and her girlfriends wanted to watch television, and Cate, it being such a nice day, told Eadie to play with her friends on the balcony and she would bring afternoon tea. She brought Eadie and her two friends, Iliana and Cedar, biscuits and refreshments. This was the last time she saw them prior to the accident. Eadie and her friends were on the balcony laughing. Their towels from swimming were on the rail of the balustrade.
6. At this point in giving her evidence, Cate was obviously emotional. She gave her evidence with a stoic determination. In my view, she achieved significant accuracy given the obvious distress that it was causing her. She continued without significant interruption.
7. Having given the girls their afternoon tea, Cate went to the front garden. The layout of the Property was not described to me in detail, but I understand that the garden Cate went to was not in view of the balcony on which the girls were laughing and having afternoon tea.
8. She heard the girls screaming, but as she said in her evidence, the girls had been screaming when playing in the pool too. She attributed it no significance.
9. One of Eadie's friends came to her saying Eadie had fallen off the balcony. Cate thought that what was being said to her did not make sense. Eadie's friend took Cate down to the back of the Property.
10. On arrival, what Cate saw was her daughter Eadie laying on her side in front of the pool. Doing the best she could in her highly distressed state, the words Cate used in court were that it was "just unbelievable".

Assessment of Plaintiff Oral Evidence - Reliability

1. I accept as accurate Cate's description of the incident and of herself, as well as of her perception of Eadie. Her account is entirely consistent with the evidence of Dr Dragutinovich, clinical psychologist. Cate gave her evidence with the accuracy to be expected of a barrister giving evidence in her own claim. She was open during cross-examination and even during her evidence-in-chief readily gave answers against self-interest. In these proceedings I accept Cate as a truthful and accurate witness.

The Defendants' Report

1. On 23 June 2011, Cate and Mr Walsh agreed that he would provide a pre-purchase report and she paid, as required, for the report prior to its delivery to her.
2. The defendants' report dated 27 June 2011 relevantly provided as follows: 1. the Introduction declared that the purpose of the report was to provide both advice and information regarding the "functionality" and general "condition" of the building; 2. that the inspection was visual (elsewhere in the report inaccessible defects were identified as excluded); 3. that that inspection was in accordance with AS4349.1 - 2007 (Part 1 - Property Inspections - Residential Buildings) (Comment: this is the description of inspection included within the definition "Business Activities" in the Schedule to the insurance policy); 4. that the building "has been maintained" and that there had been "no significant loss of strength or serviceability"; 5. within "Areas Inspected", Verandas/Balconies were included; and 6. under "Summary", it was in bold type and underlined, that the overall condition of the building was "considered structurally sound & in a fair condition", and the "incidence of major defects" was "Low". The notation at the bottom of page 6 of the report which is the page headed "Summary" reads as follows: Note: This report should not be relied upon if the contract for sale becomes binding more than 30 days after the date of initial inspection. A re-inspection after this time is essential. [Comment: This is the notation relied upon by the defendants to allege contributory negligence and contractual exclusion of claim.]
3. Cate gave frank evidence that she did not read the whole report closely and that she was not able to recall with accuracy the parts of the report which she read. Cate said that she was confident in her recollection of having read the "bullet pointed" and "summary" type passages. She said that she read page 6. "major defects" which appears in bold at a bullet point on page 6 and is defined on page 8 to mean those areas where the defect is of sufficient magnitude as to require rectification in order to avoid unsafe conditions, loss of utility or further deterioration of the Property. That definition would meet the plain English meaning and practical application of those words in the circumstances.
4. Cate said in her evidence in chief that she read the report with a concern for whether it identified major defects in the Property. An alternative meaning was not put to her in cross-examination.

Pure Mental Harm - Dr Dragutinovic

1. The defendants concede that Cate's claim for pure mental harm damages satisfies the entitling hurdles provided by ss 30 and 31 CLA, and that s 32 CLA did not relieve it of a duty of care save that the defendants say that damages are to be reduced on account of contributory negligence as contemplated by s 30 (3) CLA.
2. Cate relies upon the reports of Dr Dragutinovic dated 23 August 2013 and 13 June 2015. Dr Dragutinovic is a clinical psychologist. He was retained for the purposes of the proceedings by Cate's solicitors. The defendants do not rely upon expert medical opinion evidence but did cross-examine Dr Dragutinovic.
3. Dr Dragutinovic diagnosed Chronic Post-Traumatic Stress Disorder and moderate intensity co-morbid Major Depression as the mental harm suffered by Cate. In his report dated 23 August 2016, he set out the diagnostically relevant history which is entirely consistent with the oral account given by Cate in her evidence. As it is descriptive of the psychiatric illness suffered, I quote the relevant passages as follows: "In response to hearing shrill screams followed by Edie's friends yelling that Edie had fallen off the balcony, the plaintiff's first reaction was one of confusion: "It didn't make sense to me - it didn't seem possible - it was a solid wooden bordered balcony - I couldn't imagine her climbing it - it didn't make sense." Kate ran over to the concreted pool area under the balcony, unable to believe the horrible sight of Edie lying "crumpled" on her side unconscious; "A nightmare - unbelievable - I freaked out - I tried to pick her up - her dog was running around her barking - I pushed it away - I picked her up - I thought she was dead - I thought it was the end of her" ….. Kate called the ambulance. Edie "came to" on the lounge. A specialist team was sent from Wollongong owing to concerns that Edie had suffered a spinal injury: 'They took a long time to come - the Police got there before they did - I stayed next to her - she went back under" [lapsed back into unconsciousness] - but before she did she said: 'I don't feel very good'. As Kate waited for the ambulance her mind cast worst case scenarios; 'When she went back under I thought she was going into a coma - that she'd be brain damaged or die - I honestly thought it was such a fall onto concrete that it was too much for her - too much of a fall - that she must have been smashed up inside - waiting for the ambulance seemed like it went on forever - I thought she needed help quickly - I've never had a worse time in my life''. (emphasis as used by Dr Dragutinovic)

Eadie's Accident - Balustrade Failure - Evidence in Detail

1. On 17 December 2011, Eadie fell from the balcony when a baluster failed to restrain her.
2. One of the two policemen who attended the scene of the accident was Senior Constable Daniel Hilton. At the time of the accident he was a constable in the NSW Police force. He was on the scene second only to the single person Emergency First Response ambulance officer. After providing traffic control for the helicopter extraction of Eadie, Senior Constable Hilton returned to investigate the scene. The thirteen photographs taken by him only about three quarters of an hour after the accident and the police COPS narrative of the event created by him were admitted into evidence.
3. In his narrative he recorded that when sitting on an outdoor lounge and playing with her friends on the verandah, Eadie fell backwards off the lounge and through the balustrade, 2.57 metres to the concrete below where Cate found her with her eyes open but unresponsive.
4. He found that the 1.2m vertical balusters were held in position by one nail at the top and one nail at the bottom, all of which nails were very rusty. He observed - and there is no issue between the parties that this is the place through which Eadie fell - one slat missing from the balustrade which slat was laying below on the ground.
5. With his partner he tested the balusters on either side of the gap through which Eadie fell. He found that they were easily pushed out at the bottom. It was because he observed two of the three most proximate balusters to be loose to mere touch and the third slat to have moved with a push that he took the thirteen photographs in evidence.
6. Whereas "nail" is referred to his narrative, it was common ground that what he described was a "screw". He observed along the whole of the verandah that it was "clearly apparent" that the screws were "rusted". He observed that there was no recent paint such as might have covered the screws and recalled that the surfaces were weathered. Photograph 13 showed the back of his hand against balusters which had pushed out at the bottom. He clarified that he pushed the middle of the balusters, not the bottom or top when testing them. He could not recall, in relation to the balusters which moved with a push, whether the wood broke from the screw or the screw broke, releasing the bottom.

Plaintiff Expert Liability Evidence - Dr Cooke

1. Cate relied on the expert evidence of Dr John Cooke, consultant architect. Dr Cooke provided two reports. He inspected the property on 18 May 2012, eleven months after the subject report and six months after the accident. Dr Cooke's second report is dated 18 November 2016 and responds to the report of the defendant expert witness, Mr Grieve of 2 August 2016.
2. The defendants' expert liability opinion evidence came from Mr Grieve who is an engineer.
3. Mr Grieve misunderstood the location of the balustrade through which Eadie fell when he wrote his first report. During the hearing he carried out an inspection at the correct location and his second report dated 22 November 2016 was admitted without objection.
4. The factual question to be answered by expert evidence involved fairly straightforward propositions arising from the factual observations of Senior Constable Hilton at the time of the accident. On Senior Constable Hilton's evidence, the bottom fixation of the balusters (also referred to in the evidence as slats) to the bottom horizontal rail of the balustrade was shown to be insecure.
5. Plainly Eadie was able to fall through the balustrade and the single baluster fell to the ground, probably because it was dragged down by her falling through.
6. Senior Constable Hilton's evidence established that the screws fixing the balusters to the bottom rail were obviously rusted and there had been no recent painting which might hide that fact.
7. That rusty state of the screws would have been apparent when the defendant Mr Walsh inspected the house less than six months before. The common expert evidence accorded with this. Mr Walsh's evidence is not inconsistent.
8. Dr Cooke's evidence, in my opinion, explained what can be described in layman's terms as the "vulnerability" of the construction of the fixation of balusters to the bottom rail. That vulnerability arose because the bottom of the baluster was retained in position by two sources of fixation, being a 5mm lip in the bottom rail and a common steel screw angled across grain near the distal end of the baluster holding it into the bottom rail against the 5mm lip. In the context of the components being of wooden construction, natural shrinkage and movement expected to have occurred in the 20 years between construction and the date of the defendants' inspection most likely resulted in the bottom of the baluster not being restrained by the whole 5mm of the lip. In the context of the screw being normal un-galvanized steel, it had over 20 years rusted greatly

Mr Walsh's Inspection

1. The first defendant, Mr Walsh, was throughout the whole of his evidence in chief and in cross examination an obviously frank and truthful witness.
2. Mr Walsh had no recollection of either his subject inspection of the property on 27 June 2011 or of his inspection of it about two months before that date for a client named Schweimer.
3. At the time of the subject inspection he on average performed two such inspections per day. He had assistance in his business from his wife and from a book keeper. On occasion he employed other inspectors. He estimated that he worked four to five hours most days per week on the administrative side of his business including the preparation of reports.
4. Admitted into evidence was the template document of 80 pages from which he selected paragraphs and made additions, modifications and deletions of paragraphs in his process of producing reports. For instance, the subject report is 46 pages long, not the 80 pages of the template.
5. Common photographs appear in Mr Walsh's April 2011 Schweimer Inspection report and in his subject 27 June 2011 report. Plainly, Mr Walsh referred to his work done in the production of the Schweimer report to some extent in his preparation of the subject report.
6. His practice was to follow the same routine during every inspection. That routine was to move clockwise around the outside of the property inspecting the exterior of the building, outbuildings and fences and then clockwise inside the property. He said that he stuck to this routine so as not to miss rooms. Then he inspected the roof cavity and finally the sub-floor.
7. Albeit he said that he took notes and photographs during an inspection, no evidence was given of notes or photographs taken during the subject inspection. As above, it is conceded that he used photographs taken during his earlier Schweimer inspection.
8. He said that his normal practice when inspecting a balcony was and in relation to the subject balcony would have been to inspect it from the outside underneath and then during his internal inspection to examine the condition of the roof, the frames, look for any water leaks, check the decking, the attachment of the balcony to the side of the house and move clockwise examining the balustrading.
9. Mr Walsh demonstrated with his hands as he gave his evidence that when "visually" checking the balustrade his practice was to hold and attempt to shake the rails and to apply some force to some balusters at the top, the bottom and the middle.

Defendant Expert Liability Evidence - Mr Grieve

1. As above, the defendant expert opinion evidence was contained in to the two reports of Mr Grieve, an engineer.
2. Mr Grieve's opinion was that the balusters were insecure, so as to fail to restrain Eadie, because the bottom rail was rotated outward 7% (approximately 3 degrees). The outward tilt of the bottom rail meant that the baluster was retained at the bottom by only 1.43mm of the lip, and not the 5mm vertical restraint as designed.
3. In Mr Grieve's opinion, that the mere 3 degrees of rotation of the bottom rail at the point of its failure to restrain Eadie was so slight as to be not observable in the police photographs but observable with the use of a spirit level.
4. The crux of Mr Grieve's written report opinion is a hypothesis that the baluster came free at the bottom rail permitting Eadie to fall because the bottom rail had at some time suffered an impact of outward force causing it to rotate, the effect of that rotation being the 5mm retaining lip of the bottom rail was reduced in height to 1.43mm against the baluster.
5. In other words, assuming the bottom rail to have been originally affixed decades before such that its top and bottom surfaces were horizontal; then the bottom of the baluster ought have been restrained from moving outward because it was held behind the 5mm lip.
6. In Mr Grieve's opinion, the retaining screw, in that method of construction, was not intended to provide tensile strength restraint against outward movement of the bottom of the baluster. In Mr Grieve's opinion, the purpose of the screw was only to hold the bottom of the baluster in the horizontal position so that it did not move sideways.
7. When inspecting the balustrade on the wrong side of the centrepost opposite to the side that from which Eadie fell for his first report, Mr Grieve found substantial rotation of the bottom rail which he described as: "The bottom rail had rotated forward to a slope of 14.4% at the block near the third baluster and 16.6% at the bracket near the third baluster … The third baluster was not retained by the lip but was touching the lip …. Noting the slopes of the bottom rail the rotation at the lip was approximately 7 mm at the block near the third baluster and 8.5 mm at the bracket near the third baluster. The third baluster was approximately at the third point between the block and the bracket. Therefore the rotation at the third baluster was approximately 7.5 mm. This is in excess of the 5mm retaining the third baluster and is consistent with the baluster swinging free not just touching the lip".

Consideration - Liability Determination

1. In Cate's proceedings numbered 2014/224296, the defendants concede that they owed Cate a duty of care.
2. In Eadie's proceedings numbered 2014/224312, the defendants deny that they owed Eadie a duty of care.
3. I invited the parties to provide written submissions on the defendants' denial of duty of care in Eadie's proceedings. The defendants responded that they have "not located any authority directly on point".
4. In my opinion, the defendants' denial cannot be accepted. That Mr Walsh as a professional building inspector owed a duty of care to Eadie is well established: Voli v Inglewood Shire Council [1963] HCA 15; 110 CLR 74 at [9]; WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127.
5. The parties do not submit that I am to determine questions of liability separately between the first defendant Mr Walsh and the second defendant, his corporate alter ego, Complete Building Inspections Services Pty Ltd.
6. Between the defendants and the cross-defendant insurer, there is no issue that the second defendant was the insured and Mr Walsh an inspector named in the policy under the cover contracted.
7. For application of s 5B CLA, it is necessary to identify the relevant risk: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]. In the present case, that risk was of injury upon impact with the concrete pool surround 2.57m below upon the balustrade failing to restrain the person from falling. That risk was foreseeable within the meaning of s5B(1)(a) CLA and not plainly insignificant within the meaning of s 5B(1)(b) CLA. In the circumstances, a reasonable building inspector in the position of Mr Walsh would have discovered the hazard by taking the precautions of conducting the visual inspection, including shaking and applying some force to test the balusters which I have found he either failed to do or if he did discover the hazard, then he failed to report it.
8. The relevant risk of failing to report was the same risk as that identified above in relation to inspection.
9. For the purposes of s 5B(2) CLA, that the balusters came loose at the bottom to mere touch and others to modest force as applied by Senior Constable Rogers and that the property was a home and therefore it was likely that persons including children would use the verandah without noticing the insecurity at the bottom of the balusters; I consider the probability of a person and particularly a child falling through the balustrade to be significant and the harm likely to result upon that person impacting the concrete 2.57m below to be very serious.

Was Cate Contributorily Negligent?

1. On Day 1 of the hearing, the defendants by Amended Defence in Cate's proceedings numbered 2014/224296, and Second-Cross Claim in the Eadie's proceedings numbered 2014/224312, pleaded defence and contribution on the basis of the notation at the bottom of page 6 of the subject report.
2. The defendants plead the notation at the bottom of page 6 of the subject report was of the effect that either: 1. Cate did not rely on the report; 2. if she relied on the report, then she was contributory negligent in doing so; or 3. any duty which the defendants owed to the plaintiffs was limited to the circumstances where Cate contracted to purchase the property within 30 days of the subject report.
3. I will deal with the arguments based on the notation cumulatively.
4. Cate did not contract to purchase the land until 16 August 2011, more than 30 days after the date of the report.
5. Appearing at the bottom of the Summary page 6 the notation did not appear to be a condition, and was not placed amongst the Terms and Conditions of the pre-purchase report.
6. Further, the notation was not otherwise identified by the wording as a condition of contract. The defendants do not rely on the Terms and Conditions elsewhere identified in the report.
7. The notation does not in its terms contractually express exclusion from liability or a time upon which the expiration of liability would occur.
8. The contract for provision of Mr Walsh's report was agreed and paid for before delivery of the report document and without reference to such a limitation.
9. In my opinion, the notation is only an advice of the risk of possible change of condition of the Property over time outside of 30 days from the date of inspection. The defendants have not achieved proof of such a circumstance in this case. I have found that there was no material change in the state of the balustrade between the date of the subject report and the date of the accident.
10. There is no basis for finding that the notation ought to have caused Cate not to rely on the failure of the report to identify the hazard, or that it ought have caused her to exercise some style of caution in regard to security of the balustrade. Pursuant to s 5R CLA Cate was not contributory negligent by relying on the subject report. I apply no reduction in damages pursuant to the provisions of s 5S CLA.

Non-Economic Loss -Section 16 CLA

1. At the commencement of the hearing, Cate handed up a Schedule of Damages claiming non-economic loss at 29% of a most extreme case but in oral closing submissions Cate claimed 30-35%. Late in the hearing, the defendant handed up a Schedule of Damages submitting that non-economic loss be assessed at 17% of a most extreme case.
2. As already observed, it is conceded that the thresholds contained within ss 30-32 CLA do not apply to disentitle or limit Cate's recovery of damages.
3. As Dr Dragutinovic explained the incident causing Cate's Post-Traumatic Stress Disorder was the extremely distressing event of seeing her 7 year-old daughter Eadie crumpled and unresponsive on the concrete 2.57m below the deck of the balcony and Cate's mind jumping to the worst case scenario that Eadie was dead. In the immediate thereafter, the mental shock continued for Cate as she so ineffectively and clumsily - by her self-perceived standards as a person used to competently and intelligently functioning - provided care for Eadie and obtained emergency services for Eadie. The uncontested evidence of Dr Dragutinovic is that impressions of Eadie when discovered by Cate are permanently imprinted in Cate's mind. It is also clear that for more than two years following the accident Cate struggled in a distressed state to cope with her personal, professional and maternal life duties.
4. Cate's Post-Traumatic Stress Disorder is permanent and symptoms will throughout her life wax and wane according to triggers in her environment which triggers cannot be predicted. As a single mother practicing as a barrister, she has already displayed the dogged determination and stoicism required of her continuing parenting and of her professional practice; however she will throughout her career suffer periods of unnaturally high levels of mental fatigue consequent of having to employ that dogged determination against distracting distress and depression according to her condition.
5. That Cate with the ongoing assistance of regular psychological counselling by Mr Bracken has in significant measure over the two years preceding the hearing significantly restored her self-confidence and controlled her anxiety is both a credit to her and provides a real measure of both her non-economic loss and economic loss.
6. I have no doubt that, as Cate volunteered at the time of the hearing, she had so restored herself in terms of her professional performance that she felt she was back to her pre-injury functioning state; she did so knowing that it was against her interests in terms of the damages she might otherwise opportunistically receive had she described her personal exertion to be at a more diminished level. I accept that it has been a hard haul since the accident and that from the time of her injury until her conduct of the Windeyer manslaughter trial in 2015, Cate suffered distressing anxiety about her capacity for judgment in her personal and parenting life as well as in her working life. In particular, during this period, Cate reverted to Local Court criminal work which was unchallenging to her and like the work she had done years before in her legal career. She took that work whilst avoiding the more complex trial work which she had already started to receive, albeit she had only been a practicing barrister for a few years and for most of that part-time prior to 2011.

Out of Pocket Expenses

1. Past out of pocket expenses are agreed in the sum of $7,144.55.

Past Economic Loss

1. Exhibit L is a collection of schedules of fees rendered, earnings, expenses, tax and net income of Cate for the financial years 2010-2015. Exhibit 5 is Cate's Notice of Assessment from the Australian Taxation Office for the 2009 financial year. I was grateful for the co-operation of counsel for the parties in agreeing that the schedules are mathematically accurate representations of the far more voluminous source material of Cate's finances.
2. Cate's gross fees rendered in the calendar years 2011-2015 were as follows: 1. 2011: $255,292.00 2. 2012: $148,119.00 3. 2013: $102,579.00 4. 2014: $180,292.00 5. 2015: $218,088.00
3. Her gross fees rendered for the preceding years were not available but as Cate as working part-time about 3 days a week prior to 2011, those renderings would not be truly comparable to the present.
4. Cate submits that gross fees rendered show a "dip" in her personal exertion following the accident on 17 December 2011. The figures cannot unqualifiedly be so accepted. The reason is that in 2011, Cate was retained in the Windeyer Care proceedings in the Family Court. Her evidence was that she appeared in court on about 90 days in that matter and that it occupied about 60% of her practice in that year. It was the biggest matter in which she had ever been retained. Naturally, it is not to be assumed that if Cate had not been working in the Windeyer matter, she would not have been briefed in other matters. The evidence is not so precise as to permit accurate analysis exploring such propositions. Nevertheless, Cate's 2011 fees rendered performance is not shown by the evidence to be a benchmark for calculation of diminished performance.
5. Whilst during 2012 Cate billed $97,000 less than her peak year of 2011 and in 2013 her gross fees rendered dropped a further $46,000, in 2014 she improved gross fees performance by $78,000 and by a further $28,000 in 2015.
6. In my view, the documentary evidence represented in Cate's schedules fits with Cate's own evidence in that the trajectory of her practice into a more sophisticated work as a full time barrister was in its infancy in the 12 months preceding the accident and that she was a person of significant experience starting to show a trajectory as a barrister toward more complex work and more remunerative privately briefed work.

Future Out of Pocket Expenses

1. Neither in his report dated 13 June 2015 nor in oral evidence did Dr Dragutinovic vary his estimate of treatment given in his report of 23 August 2013. That ongoing treatment is a reasonable expense for Cate is a conclusion properly accommodated by the evidence given by herself of her improvement in her function personally and professionally attributable to her fortnightly counselling with clinical psychologist Mr Bracken since early 2015. I accept Cate's evidence in this regard. It is consistent with Dr Dragutinovic's opinion. There is no evidence to the contrary.
2. In his first report, Dr Dragutinovic assessed Cate's need for treatment on the basis of his opinion that her condition had stabilised at a level where her Post-Traumatic Stress Disorder and Comorbid Major Depression would be unlikely to significantly remit without counselling. He has been proved correct in that. At the time of his 2015 report Cate was participating in the excessive consumption of alcohol to which I have referred. With ongoing treatment from Mr Bracken her alcohol consumption has returned to healthier level permitting her to function in life without the effects of that earlier excessive consumption. Dr Dragutinovic in his first report recommended 10 sessions of covert systematic desensitisation of Post-Traumatic Stress Disorder and 10 sessions of cognitive behavioural treatment for Comorbid Major Depression involving assistance with monitoring, identifying and reorienting cognitions underlying comorbid mood and affect disturbance. He said that those treatments could be adequately provided by a clinical psychologist.
3. Whilst the precise treatment provided by Mr Bracken was not examined in the evidence such that it can be equated with what Dr Dragutinovic recommended; the impression I have is that Dr Dragutinovic was correct and that the treatment of Mr Bracken has proved beneficial. That said, nothing in Dr Dragutinovic's evidence describes ongoing psychological treatment beyond that which has been already fulfilled by Mr Bracken.
4. In my view, the real and readily acceptable evidence is that in the course of the permanence of her Post-Traumatic Stress Disorder and ongoing depression Cate requires continuing clinical psychological consultation of a reasonable measure as well as episodic medical treatment by way of general practitioner visitation as her condition waxes and wanes through the demanding lifestyle course which she has chosen.

Future Economic Loss

1. Applying the provisions of s 13(1) CLA, I am satisfied on the evidence that Cate's most likely future circumstances but for the injury would have been that she continue as a successful barrister without interruption and unhampered by the fatigue of the waxing and waning of her permanent psychological impairment. Further, Cate's doggedness and personal discipline observed by me in the manner in which she gave her evidence and also as observed by Dr Dragutinovic cause me to assess for the purposes of s 13(2) CLA that no adjustment is required for future economic loss for circumstances which might have occurred but for the injury. They would be entirely within the normal experience of a working professional. This is because her displayed strength of character and professionalism was likely but for the injury to have carried her through the ups and downs of life as well as would be expected from any other person.
2. I accept that, the effect of the waxing and waning will happen but as opined by Dr Dragutinovic the extent of it is impossible to accurately assess. For that reason, the impact of the injury upon the economic benefit from exercising earning capacity into the future is difficult to determine. Nevertheless, periods of compromised personal exertion to earn which are likely to be productive of financial loss are her reality. She is entitled to compensation for that loss: Graham v Baker (1961) 106 CLR 340 at [346]-[347] per Dixon CJ. Kitto and Taylor JJ; [1961] HCA 48 at [7]-[8]; Husher v Husher (1999) 197 CLR 138 at 144 per Gleeson CJ. Gummow, Kirby and Hayne JJ; [1999] HCA 47 at [7].
3. Cate is 53 years of age. She gave no evidence of her intended retirement age. Previously she worked part-time to accommodate her child raising obligations. She may in the later years of her remaining, say 12 years of working life work part-time or receive less demanding briefs as life's demands and opportunities avail upon her. At the time of the hearing, she was not suffering economic loss consequent of impaired personal exertion.
4. Doing the best that I can on the evidence as is available, I assess future economic loss on a buffer basis according to the principles set out in Penrith City Council v Parks [2004] NSWCA 201 at [5] and [58] in the lump sum of $30,000.00.
5. The parties agreed that following my delivery for these reasons counsel would agree the mathematical calculation of damages. Normal allowances for exigencies of 15% are to be allowed.

The Insurance Question

1. Turning to the insurance question, by First Cross-Claim in each of the proceedings, the defendants seek relief from breach of contract or the Insurer's failure to indemnify and pay the claims.
2. The Insurer admits the policies of insurance and that it has refused to indemnify, but relies upon specific exclusion clauses to deny that its refusal is a breach of the contract.
3. The parties refer to the Professional Indemnity and General Public Liability wording as separate policies. So far as it is relevant, I do not determine that they are separate policies. They carry the single policy number AUS12-5234, renewal date and single premium. They were agreed pursuant to the single Coverage Summary Brokered, Policy Schedule and Insurance Premium Advice. The wordings were contracted as composite covers. Nevertheless, the cover is described in wording presented in separate parts and, subject only to assistance of interpretation should it be necessary to consider whether or not they form a single contract. The parts are available to be interpreted as describing separate risks of the same defined Business Activity.
4. The first part is entitled "Professional Indemnity Policy - Part B (Wording)", and the second part is entitled "General and Public Liability Policy - Part B (Wording)".
5. In relation to the Professional Indemnity, the Insurer relied on the Exclusion Section 7, clause 7.17, on page 9. In relation to the General and Public Liability wording, the Insurer relied on Exclusion Section 6, clause 6.19, on page 16.
6. The insurance promises indemnity covering the defined "Business Activities" which includes specifically Residential Building Inspections - AS4349.1-2007 (Schedule). The subject inspection report provided to Cate by the defendants, was a Residential Building Inspection - AS4349.1-2007. The defendants' provision of that report for the purposes of this case falls precisely within the defined Business Activities for which cover was promised.
7. The Coverage Summary notified the defendants that it was a quick reference "for when you prepare your Insurance Proposal", and that it listed the "main details of your cover currently held" with the Insurer, whilst not forming part of the Schedule.
8. The Insurance Premium Advice which does form by incorporation part of the Schedule, includes: Based on your proposal, cover is provided for the following Business Activities: … Residential Building Inspections AS4349.1-2007 and makes direct reference to inclusion of Residential Building Inspections and "for work" carried out in that activity. It advises that the wording is to be read "in conjunction with" relevant endorsements for the Business Activities.

Orders 1. In proceedings numbered 2014/224296, plaintiff Cate Doosey, I give judgment for the plaintiff against the defendants jointly and severally in the sum to be calculated by agreement between the parties in accordance with these reasons. 2. In proceedings numbered 2014/224312, plaintiff Evangeline Doosey-Shaw (by her next friend Cate Doosey), I give judgment for the plaintiff against the defendants jointly and severally, damages to be assessed. 3. In proceedings numbered 2014/224312, plaintiff Evangeline Doosey-Shaw (by her next friend Cate Doosey), I dismiss the Second Cross-Claim. 4. In proceedings numbered 2014/224296, plaintiff Cate Doosey, on the First Cross-Claim I give judgment for the Cross-Claimants against the Cross-Defendant. 5. In proceedings numbered 2014/224312, plaintiff Evangeline Doosey-Shaw (by her next friend Cate Doosey), I give judgment for the Cross-Claimants against the Cross-Defendant. 6. In both proceedings, the First and Second Defendants pay the Plaintiffs' costs of the proceedings. 7. In both proceedings, the Cross Defendant to the First Cross Claim pay to the First and Second Defendants the costs payable by the First and Second Defendants pursuant to order 6. 8. In both proceedings, the Cross Defendant to the First Cross Claim pay the First and Second Cross Claimants' own costs of the proceedings.

Amendments 06 February 2017 - Typographical error. 06 March 2017 - Substitute Orders 6-9 of original judgment of 3 February 2017 with Orders 3-5 of Consent Orders handed up in court on 14 February 2017, pursuant to orders made by Judge Montgomery in court on 14 February 2017. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2017