COLE v LAWRENCE [2001] NSWSC 92 | Case summary

COLE v LAWRENCE [2001] NSWSC 92 | Case summary | Zoe

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1 On 26 June 1994 at about 6.20pm the Plaintiff was walking along Fraser Drive, South Tweed Heads. There she came into collision with a 4-wheel drive Mitsubishi Pajero the First Defendant was driving and suffered injury. 2 At the time, the Plaintiff was intoxicated - grossly so. An analysis of her blood carried out after the accident revealed a blood alcohol concentration of .238. There was evidence that it was likely to have been slightly higher earlier. 3 At about 9 to 9.30am on that day she had, in the company of friends Fay and Ken Hughes and Tom Watson, attended the premises of the Second Defendant to participate in a champagne breakfast. Although there was evidence from the club manager of the time to the contrary, Spumante was freely available at no cost on a table to which the patrons could take their glasses and replenish them. The supply of bottles to that table was kept up from time to time during the course of the morning by the Second Defendant. Asked how many glasses of this complimentary champagne she had had, the Plaintiff replied "lots". To the extent to which the evidence of Mr and Mrs Pringle may suggest there was not "lots" to be had, I reject that evidence. 4 The supply of free champagne ceased after a time. Estimates of when this usually occurred varied between 10 and 11 am. Having regard to evidence from Mrs Hughes as to the quantity she had and the time spent drinking before breakfast, my inclination is to think that the free drinks did not run out before about 10.30 on 26 June 1994. 5 The Plaintiff's own recollection of the day was incomplete. She did remember buying three bottles of Spumante later in the day from the bar. There may have been a little sharing of the contents of these bottles with Mrs Hughes although the strong probabilities are that the Plaintiff more than made up with drinks she obtained from a bottle or bottles Mrs Hughes had bought. During her time at the club, the Plaintiff played Keno, some other dog game which the club conducted, and the poker machines. She remembers that while there, she had a very good time. 6 Mr Hughes and Mr Watson had left earlier than Mrs Hughes and the Plaintiff. Asked for her last memory of the afternoon, the Plaintiff said that she recalled attending on a taxi cab and giving the driver directions as to the address to which Mrs Hughes should be taken, of going back into the club and, after that, of going out of the Club and having a look (but nothing more) at a football match in progress. In cross-examination she said that her last recollection was of being inside the premises. Her last recollection of drinking was of going to the bar and buying a bottle but she did not know whether this was before or after farewelling the taxi. The Plaintiff has no further recollection until waking up in hospital in Brisbane. I accept this evidence of the Plaintiff to which I have referred. 7 More details of the plaintiff's condition and activities at the club were provided by Mrs Hughes. Because of the Plaintiff's proceedings against the Second Defendant it is necessary to refer to this in some detail. Mrs Hughes gave evidence of them drinking throughout the period of free champagne, in Mrs Hughes' case filling 2 glasses at a time and herself drinking about 8. There is no direct evidence that the Plaintiff adopted this practice but, in light of the evidence of her state and actions later in the day, it would not be surprising if she had. 8 When the free champagne ran out, Mrs Hughes attended at the bar and purchased a bottle of Spumante, poured the Plaintiff and herself a glass, leaving the bottle behind the bar and available to herself and the Plaintiff when they wished. She was somewhat uncertain whether she purchased a second such bottle, dealt with similarly. 9 Mrs Hughes said that by around midday the Plaintiff was drunk, carrying on and arguing and her speech was a bit funny. Messrs Hughes and Watson left between 12.20 and 12.30 after which Mrs Hughes saw the Plaintiff drinking from the neck of a full Spumante bottle in the vicinity of the poker machines. At about 1 pm the Plaintiff went outside to the football area drinking as she went. At about 1.30 the Plaintiff was inside again and Mrs Hughes, following a phone call from her husband, indicated a desire to go home. Soon after she again saw the Plaintiff dancing out in the football area with 2 handbags round her chest, 2 cardigans in one hand and a bottle in the other swinging it around. At about this time the Plaintiff said to Mrs Hughes that she was going outside to spend some time with some New Zealand friends. At about 1.45, the Plaintiff appeared to Mrs Hughes to be "absolutely drunk" and by about 2.20, "totally inebriated" and "an embarrassment". It was at that time the Plaintiff gave instructions to the driver of the taxi in which Mrs Hughes left the club. Mrs Hughes also said that every time she saw the Plaintiff, the Plaintiff had a bottle of Spumante. 10 Mrs Pringle, the wife of the secretary and manager of the club at the time, who was herself doing voluntary work at the club on the day also gave evidence of her observations of the Plaintiff. She said that the Plaintiff had approached the bar requesting an alcoholic drink but due to her slurred speech she was unable to fully understand what she was saying and said to her "go away, you're drunk". In cross-examination Mrs Pringle agreed that the Plaintiff was not particularly unsteady at 3 pm but I regard this as but a limited qualification to the evidence she had given earlier. In a previous statement made to police, she described the Plaintiff as being well affected by intoxicating liquor. At 5.30 Mrs Pringle again noticed the Plaintiff. Mrs Pringle described the Plaintiff variously as being loud and slurred in her speech, walking unsteadily on her feet and as promiscuous, the result of her "grabbing men in a group on their private parts". 11 Mr Pringle gave evidence of seeing the Plaintiff at about 5.30 pm. He saw a bottle of Spumante on the table where the Plaintiff was and described her as being "very, very drunk" at that time. He thought she was being held up by someone else. He told her "You are affected by alcohol, I won't tolerate your behaviour, you will have to leave." 12 The only direct evidence as to the circumstances of the Plaintiff's leaving the club was provided by Mr Pringle. To facilitate her departure, and because Mr Pringle perceived the Plaintiff needed help to get home safely, the Plaintiff was offered the use of the club's courtesy bus and driver, both of which were available at the time. The alternative of a taxi was also offered, which apparently was part of the club's standard procedure in such circumstances. Mr Pringle described the Plaintiff's response to both offers as verbally abusive saying "I think she told me to get fucked." 13 Whilst Mr Pringle was telling the Plaintiff again that he would not tolerate such behaviour a Maori in the Plaintiff's company told Mr Pringle to leave it (semble, her) with them and that he and others with him would look after her. With this Mr Pringle continued on with his duties and within a matter of minutes noticed the group had all gone. Mr Pringle had in fact told the group that because of their behaviour, they would not be served again. However the group appeared to Mr Pringle not to be drunk. 14 At this stage it may be desirable to say something about the witnesses to whom I have referred. While I accept the evidence of Mr and Mrs Pringle referred to in the immediately preceding paragraphs, I do not accept all they had to say. Mr Pringle particularly exhibited a tendency to cast himself and the club in a better light than deserved. An example is his evidence suggesting that there was less rather than more free Spumante and that its distribution was supervised although I do not restrict my reservations to that topic. An example in the case of Mrs Pringle is her statement that the Plaintiff was not "overly drunk, notwithstanding her later agreement that the Plaintiff could not make herself understood. I accept Mrs Hughes. I accept also the honesty and, subject to the obvious defects in her memory, reliability of the Plaintiff. She impressed me as someone who did not exaggerate and this regardless of whether the topic was liability or damages. 15 I should also refer to other evidence bearing on the question whether the Plaintiff's condition was or was likely to have been observed by employees of the Second Defendant. Mr Pringle said that the normal attendance on Sunday mornings was about 120 people. Mrs Hughes said that there were at least 3 staff present - I infer in or capable of observing the patron area. Mrs Pringle gave similar evidence and that another 2 or 3 should have come on in the afternoon. 16 Mrs Hughes said that there was an exodus of the morning patrons between 12 and 12.30. At about 1 o'clock there were few people in the bar area. Between 9.30 and 12.20 the Plaintiff was everywhere, passing through the bar and poker machine areas, talking to other people. Between 12.20 and when Mrs Hughes left the Plaintiff was outside most of the time. 17 The conclusion at which I have arrived in this regard is that, given the Plaintiff's condition and actions as described by Mrs Hughes, the probability is that one or more of the staff members of the Club, prior to about 12.20 must have seen the Plaintiff and that she was to a significant degree intoxicated.

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First Defendant 18 After Mr Pringle's, the next observation of the Plaintiff of which there was any evidence was by the First Defendant and her husband immediately prior to the accident. Mrs Lawrence was driving and her husband was in the front passenger seat. They were travelling south along Fraser Drive on their correct side of the roadway which had no marked centre line. Mrs Lawrence said that at the time of the accident it was dark. She had her lights on low beam and was driving at a speed of about 70 kilometres per hour. 19 Mrs Lawrence said that at a distance she guessed was about 2 to 3 metres she saw the light or white of a section of the Plaintiff's face which Mrs Lawrence depicted as a triangle extending at its apex from the hairline in the middle of the forehead down to the jaw line on either side. Mrs Lawrence said that she thought the Plaintiff put her head up but said that she did not see this. The Plaintiff was "more than slightly left of centre" and, although what Mrs Lawrence said in this regard is not as clear as it might be, the tenor of her evidence was that the Plaintiff was opposite the left hand end of the vehicle's bull bar, i.e on, but on the edge of, the bitumen. A photograph of damage to the vehicle provides some support for this conclusion. During examination of Mrs Lawrence the question was put to her as to why her lights were on low beam. She responded that when she left a chemist shop where she had been, it was just between being dark and not dark and that she had not yet adjusted the lights. Although she conceded there was no impediment to her having the lights on high beam had she elected to do so, in re-examination by Mr Morris she said she was not aware of any reason why she should have had them on high beam. She further conceded that the lights being on low beam would have likely illuminated a distance of approximately 50 metres ahead of her vehicle. 20 The tenor of Mrs Lawrence's evidence was that, on seeing the Plaintiff, there was nothing she could do before the collision. Before she could comprehend the situation, the Plaintiff had hit the bull bar and had come up alongside the vehicle. Mrs Lawrence immediately pulled over, at which time Mr Lawrence got out to check that the Plaintiff was not on the road and he placed a blanket over her. 21 Mr Lawrence gave evidence that when he and his wife left Tweed Heads it was right on dusk, just turning to dark. He described the relevant section of the road as "very rough" with a number of pot holes causing the vehicle to bounce. He said this problem was further heightened due to the make of the vehicle. Mr Lawrence gave evidence that he first observed the Plaintiff in the middle of his side of the roadway when she lifted her face into the path of the vehicle's head lights. At this stage he estimated she would have been only 2-3 metres away, his explanation for his sighting being so late being largely because the head lights were on a downward bounce at that point. 22 It should be noted that that evidence is contrary to some contained in a prior statement he provided to the police in which he alleged he first saw the Plaintiff emerge from the right hand side of Fraser Drive. Asked to explain this inconsistency, he said that he had thought that to be the case because upon seeing the vehicle she had stumbled to the right to avoid it. A further inconsistency in his evidence emerged with his statement that he was not engaged in conversation with his wife immediately prior to impact. This is contrary to Mrs Lawrence's evidence that they were chatting at the time. His description of the Plaintiff's clothing did however accord with that of his wife's. He described it as dark, he thought black pants and a dark jumper, and observed her hair to be dark also. 23 It is appropriate to observe that I was not impressed with Mr Lawrence's reliability. Four wheel-drive vehicles may bounce but that does not have the effect that their lights are as ineffective as Mr Lawrence suggests. Indeed Mr Morris QC who called Mr Lawrence acknowledged during the course of submissions that Mr Lawrence was "all over the place". I do not feel able to rely on anything Mr Lawrence said on any significant topic except where there is substantial corroboration. 24 As I have said, at the time of the accident the Second Defendant was driving south. She must have negotiated a slight right hand bend shortly before the accident location, but for a distance I would estimate from Exhibit B and other evidence at about 80 to 100 metres north of the point of impact, the road was straight. The premises of the Second Defendant were situate approximately 100 metres south of the area where the accident occurred. At the time the applicable speed limit was 80kms per hour. Neither the eastern or western side of Fraser Drive had a made footpath. On the eastern side, however, that is to the left side given the direction of travel by the Pajero, there was a wide gravel shoulder and a grass verge, the grassed area extending up to a fence beyond which there was a wide open paddock. There was no obstacle to the Plaintiff moving off the main roadway if such need arose. For instance no gutter or culvert existed. 25 In the vicinity of, and to the north of the bend to which I have referred there were some houses but in the area between them and the Second Defendant's premises there was no street lighting. Constable Jones described the area as pitch black. 26 It may be however that there was a significant quantity of artificial lighting at the front of the rugby club. This is a matter to which I will refer in more detail below. 27 The preponderance of evidence is that the Plaintiff's clothing was dark. The First Defendant's husband and Mrs Hughes gave evidence to this effect. Although there seems to have been an element of assumption or deduction on her part, so did Mrs Lawrence. And though the Plaintiff when originally asked to describe her clothing had said that her jumper was black and white, she herself agreed during cross examination by Mr Morris with his description of her jumper as "dark". There was no attempt to resolve the apparent inconsistency between these two pieces of evidence and I propose to proceed on the basis of the preponderance of evidence to which I have referred. 28 There were tendered on behalf of the First Defendant a number of expert reports directed to the topic of responsibility for the accident. The authors of those reports were not cross-examined. The first such report was provided by a Professor Starmer. He was of the opinion that if the Plaintiff ever perceived the presence of Mrs Lawrence's vehicle, her ability to process this information with the required speed, along with her motor co-ordinative ability, would have been severely compromised due to her state of intoxication. Professor Starmer also addressed the issue of the Plaintiff's conspicuousness but as he has not been shown to have any expertise in this area, I am disinclined to place any weight on what he said on that topic. 29 A Dr John Olsen also provided a report on behalf of the First Defendant, he having been asked to "offer opinions regarding liability". My impression of his report is that it is a shallow document. For example Mr Olsen said that "Reaction time at a speed of 70 km/hr can be expected to be in the vicinity of 1.5s." While I can accept that circumstances calculated to lead a driver to drive at 70 kilometres per hour rather than a slower speed may well also induce a driver to relax so as to lead to a reaction time slower than otherwise - a view indicated in the report of Jamieson Foley to which I shall come, there is no basis for regarding reaction time as dependent on speed as the quoted statement suggests. 30 More importantly, Mr Olsen went on to say:- The illumination by low beam depends on the vehicle, generally however I would consider the likely extent of useful illumination by a vehicle with the headlights on low beam to be in the order of 30-40 metre. The distance travelled by a vehicle at a speed of 70km/hr is approximately 30m during the reaction time and for that reason I would consider it unlikely that one could expect the driver to be capable of taking evasive action since the reaction time alone would be accounted for by the time the car had travelled the distance from which the pedestrian would first become visible to a completely alert and highly vigilant driver, there would in fact be insufficient time to take evasive action which would most likely be swerving the vehicle to the right in order to avoid the pedestrian.

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And later, "I formed the view that it was reasonable for the defendant to drive with the lights on either high or low beam. With the lights on low beam there would have been no possibility of avoiding a pedestrian should that pedestrian be partly on the roadway." 31 Given that there was no specific reason why the lights should have been on low beam, it would in my view have been quite negligent for the Defendant to drive on low beam at 70 kilometres per hour if that gave her no possibility of avoiding a pedestrian, animal or anything else that happened to be on the roadway. Mr Olsen seems to have just ignored the fairly elementary principle of common sense that, absent some good reason to the contrary, one is supposed to drive within what one knows to be the limits of visibility and control - one Mr Morris QC accepted during the course of his submissions. I have derived little assistance from Mr Olsen's report. 32 A third report compiled by a Mr Johnston of Jamieson Foley & Associates was also tendered in support of Mrs Lawrence. The conclusions reached followed the conduct on 19 March 1999 of at least six drive-throughs using a similar sized 4 wheel-drive vehicle in order to assess the likely visibility of a pedestrian on approach to the accident location. Having been provided with no evidence that the lighting situation was any different at the time of the accident, Mr Johnston proceeded on the assumption of it being substantially the same as in March 1999. 33 Matters to which Mr Johnston referred and I accept include that the recognition distance of nearside objects having a 10% reflectivity factor under low-beam headlights is 50.4 metres and that reaction times for attentive drivers is known to vary from about .75 seconds upwards. Both accord, the first in general terms, with my, and I think common, general knowledge or experience. I should observe that the 50 metre estimate also accords with evidence given by Mrs Lawrence. The First Defendant also sought to support the figure by reference to paragraph 6 in Schedule F to the Motor Traffic Regulations 1935. Paragraph 6 is however subject to paragraph 20 and when regard is had to that and paragraph 19, it is apparent that paragraph 6 is not talking about lights on low beam. 34 Subject to some qualifications indicated below, I am also disposed to accept Mr Johnston's view that if the Plaintiff had been moving from left to right across the road she would have been probably visible for not less than about 30 or 40 metres, despite what Mr Johnston saw as the degrading visual effects of the lighting from the club and, it may be inferred, her dark clothing. His calculations that at 70 kph a vehicle will travel respectively 19.4 metres and 29 metres in 1 and 1.5 seconds may also be accepted. 35 I have however difficulty in accepting Mr Johnston's statements that reaction times for attentive drivers vary up to about 2.5 seconds and that, in a urban environment with a high degree of peripheral activity and a high possibility of pedestrian traffic, an attentive driver will typically respond to a normal emergency situation in a time of "up to 1.5 seconds". The first is contrary to what I regard as general knowledge which I, as a tribunal of fact, am entitled to take into account, or alternatively take judicial notice of - see McKern v Burke (1986) 6 MVR 279 at 281. 36 And the consequences of the 2.5 second figure also bear examination. If one accepts the 50.4 metres referred to as indicating the extent of normal illumination, there would be no opportunity to avoid any pedestrian, animal or obstacle first seen within the distance mentioned or even to slow down to any material extent to minimise the impact. At 70 kph, a vehicle would travel 48.5 metres within the 2.5 seconds. If that is a normal reaction time - and in my view it is not - I would not readily accept that a driver with such a reaction time, travelling at 70 kph with lights on low beam was exercising reasonable care. 37 The matter is not quite so clear in the case of the 1.5 second estimate although this figure also is higher than my general knowledge would suggest. The difficulties with it are not so clearly demonstrated although to some degree this depends on what conclusion one reaches as to the extent of visibility of someone in dark clothing. Mr Johnston, it will be recalled, gave a range and this was affected not only by the dark clothing but also by background lighting I regard myself as entitled to take judicial notice of the fact that pedestrians in dark clothing are difficult to see but that at 70 kph in normal dark conditions, they become visible when there is still time to do something significant to avoid them, even if it is not to come to a complete stop. Thus I am not disposed to accept both that the distance of visibility (shorn of the impact of the background lighting) is only 30 metres and that a normal reaction time is as high as 1.5 seconds (during which a vehicle at 70 kph would travel 29 metres). 38 Although I do not, and do not need to, rely on this, Mr Johnston's figure of 2.5 seconds is also contrary to evidence I have come across in other cases and to the tenor of the description in Table 6, "Braking Distance" in Leslie and Britts "Motor Vehicle Law". That table, described as supplied by the National Safety Council of Australia, describes a reaction time of 1.25 to 2 seconds as "Poor", although I acknowledge that that is not to say these figures may not still be within a normal range. 39 Both the evidence from Mr Johnston which I have accepted, and common experience leads to the conclusion that the First Defendant should have seen the Plaintiff significantly more than the 2 to 3 metres away of which the First Defendant spoke. Even making allowance for unreliability in that estimate, I am satisfied that the First Defendant should have seen the Plaintiff substantially earlier than she did. Whether the reason she did not was simple inattention or the fact that she was chatting with her husband, it is unnecessary to decide. 40 In that regard specific mention should be directed to the topic of lighting. As to this Mr Johnston said:- It was apparent to us whilst conducting the series of drive throughs at the incident location that the available seeing distance under low beam headlights was substantially reduced as a result of disability glare from the various external lighting sources located at the front of the South Tweed Heads Rugby League Club. This primarily due to objects outside of the more highly illuminated area being masked by the "veiling" influence of the brightly lit area. This has the effect of reducing the contrast of objects in the remainder of the field of view. Therefore unless the pedestrian was located within the direct line of sight to the brightly lit area in front of the Leagues Club, then this would further reduce the available seeing distance under normal low beam headlights to other areas within the field of view. It should be noted that this disability glare is not necessarily associated with what would be described as an uncomfortable level of light, but rather may involve only the innate functioning of the eye such that differing light levels change the size of the pupil so that regions outside the area of high light emission appear darker or of poorer contrast. 41 Mr Johnston was, of course, writing of the situation on 19 March 1999, not of the time of the Plaintiff's accident, 26 June 1994. There was no evidence called directed to the situation at that earlier time. A question arises as to which party bears the onus of proof on the issue. It seems to me that I should proceed on the basis that the lighting in 1994 was or may have been as it was in March 1999. I do not take the attitude that there is a (reverse) presumption of continuance but rather that the legal onus of proof on the Plaintiff requires her to exclude on the balance of probabilities events and circumstances which, in combination, may have operated to preclude the conclusion that the Defendant's actions were negligent. I think there is an evidentiary onus on her to exclude events which argue against the Defendants' actions being negligent. 42 Nevertheless I adhere to the view that the First Defendant should have seen the Plaintiff substantially sooner that she did. While I accept Mr Johnston's evidence as to the "veiling" influence of the brightly lit area and am satisfied that the Plaintiff was not in the direct line of sight so as to be silhouetted, I remain of the view that the First Defendant's speed was too high for the level of visibility or, more probably, that she was not keeping a proper look-out. Extraneous lighting is not something so unexpected on roads that any which existed on the Second Defendant's car park relieves, or to any substantial extent, alleviates the First Defendant's responsibility for the accident. 43 That is not the end of the matter for if reasonable care involved nothing more than seeing the Plaintiff at a time when it was too late to do anything about it, the Plaintiff will have failed to show that the Defendant's negligence was causative of her injury. In this connection one further matter requires attention. There is no evidence before me to suggest that the Plaintiff was walking across the road as Mr Johnston seems to have believed. As I have recounted, Mr Lawrence said that she was in the middle of his side of the roadway and Mrs Lawrence that the Plaintiff was opposite the left hand end of the vehicle's bull-bar. Mrs Lawrence was the more reliable generally of these two witnesses and it is thus clear that little by way of evasive action was needed on the part of Mrs Lawrence for her to avoid the Plaintiff. A slight change of direction would have been sufficient and in my judgment an appropriate speed or look-out would have enabled her to effect this. 44 As there is no direct evidence of what the Plaintiff's movements were immediately and shortly before being seen by Mr and Mrs Lawrence, I should direct attention to the possibilities. There was no reason in the evidence for the Plaintiff to have been crossing the road. There was reason for her walking along it in the direction opposite to that travelled by Mrs Lawrence. The road led somewhere and in particular in the direction of Tweed Heads. The Plaintiff lived at Kirra, further north. Furthermore, it would seem clear that the bitumen surface would have presented an easier surface to walk on than either unmade footpath. Thus, despite the almost unbelievable stupidity (at least for a sober person) of continuing to walk towards, or stand in the way of, a lighted oncoming car at night, it seems to me that the probabilities are that that is what the Plaintiff did. Of course, it may be that it was a case of her just not moving off the carriage way in time and for enough time for the car to pass. 45 I am satisfied that Mrs Lawrence was negligent and that her negligence was causally related to the accident and to the Plaintiff's injuries.

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Second Defendant 46 Despite suggestions to the contrary - See W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338 at 351, in considering whether there is any liability in the Second Defendant a convenient starting point is to ask whether there was a sufficient proximity between the Plaintiff and the Second Defendant to give rise to a duty of care in and about the serving of alcohol. I have no doubt there was. 47 General experience teaches one that clubs such as the Second Defendant have as part of their activities the provision of such drinks and other services such as gambling facilities to members and other persons for profit to the club. Generally, the greater use of these services, the greater the profit. It may be that, given the provision of free Spumante, for a time on the morning of 26 June 1994 the club was suffering a loss but its generosity was at least calculated to bring persons into the club - persons who might well, through their use of other facilities or staying on as the Plaintiff did, make a useful contribution to the club coffers. Indeed, Mr Pringle agreed that at the time attempts were being made by him as secretary/manager to enhance the club's financial returns and that the introduction of the Sunday morning breakfasts was one of the tactics he employed to this end. 48 Of significance also to the question whether a duty arose is the fact that it was alcohol that the club was supplying - a substance which can, if some restraint is not exercised, lead to situations of danger both for those who partake of it and to others. No great experience of the world is needed to know that a significant number of imbibers become aggressive, disinhibited or suffer from a deterioration in judgment with consequent danger to themselves and others. At the time of trial and, I would infer, in 1994, Mr Pringle was aware of such dangers. 49 Also relevant is the fact that the club had a degree of control over what was occurring. Not only could it refuse to supply alcohol once the Plaintiff was intoxicated within the meaning of s44 of the Registered Clubs Act, that provision placed its employees under a duty to refuse. 50 Furthermore, physical damage to someone who becomes intoxicated, whether through simply falling over, or from a more complicated chain of events was certainly foreseeable. 51 Of course, regard must be had also to the fact that the Plaintiff as an adult might fairly be assumed to have knowledge herself of the consequences of ingestion of alcohol. However common experience teaches that there are both persons who are not capable of controlling their intake and persons who, whatever their usual ability, sometimes lose their sense of discretion under alcohol's disinhibiting effects. This experience leads me to the conclusion that the possibility that the Plaintiff may have been, either at the beginning of the day or throughout it, capable of limiting her intake, does not preclude the duty arising. 52 And although I do not regard it as essential to the duty arising, the evidence to which I have referred shows that the Plaintiff was intoxicated long before she left the club. Even if one took the view that there was no duty owed to a patron who was both sober and showed no indications of becoming intoxicated - and I would not so limit it - once it came to the notice of the club that the Plaintiff was intoxicated the duty existed. 53 For these reasons, I am of the opinion that there was at relevant times a duty owed by the Second Defendant to the Plaintiff to take reasonable care in and about the serving of alcohol. To so hold is, I appreciate, to go beyond the decisions of the Supreme Court of Canada in Jordan House Ltd v Menow (1973) 38 DLR (3rd) 105 and in Mayfield Investments Ltd v Stewart (1995) 121 DLR (4th) 222 to which I was referred but the factors which I have mentioned justify doing so. 54 My conclusion may also be inconsistent with part of the remarks of Derrington J in Johns v Cosgrove (1997) 27 MVR 110 at 114 where his Honour said:- "It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonably foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this." 55 However, his Honour's reference to negligence obscures the issue of whether he was talking about duty, breach or a combination of both. 56 Of course, it is one thing to say that a duty existed. It is another to define or describe its (minimum) content. Having regard to the subject matter, I think this must be done by reference to the term "intoxicated" despite the difficulties arising from the lack of precision in that term. Thus there is common acceptance that there are degrees of intoxication - see Words and Phrases (Judicially Defined in Canadian Courts) and Judicial and Statutory Definitions of Words and Phrases collected by the staff of the American National Reporter System" and the cases cited in those publications. The word is used by some to describe any altered state arising from the use of alcohol even if the manifestations of that state are but an increase in willingness to laugh, increase in the volume of speaking or some greater excitability, but it is difficult to see that any duty should be defined by that sort of test. And even the definition in the Oxford (2nd ed., on compact disk) raises as many questions as it answers:- "The action of rendering stupid, insensible, or disordered in intellect with a drug or alcoholic liquor; the making drunk or inebriated … The action or power of exhilarating or highly exciting the mind; elation or excitement beyond the bounds of sobriety" 57 The definition of Fair J in R v Ormsby (1945) NZLR 109 that under the New Zealand Motor Vehicles Act a person is in a state of intoxication "when as a result of his consumption of intoxicating liquor, his physical or mental faculties, or his judgment, are appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life" is more useful but there is some scope for differences in view as to what was intended to be encompassed by the phrase "appreciably and materially". Does "appreciably" refer to manifestations apparent to an observer? 58 For the purposes of my use of the term "intoxicated" in this part of my Reasons I would define it as a state wherein there is, due to the effects of alcohol or drugs, a loss of self-control or judgment which is more than of minor degree. Experience suggests that once a state answering that description is reached, the person affected has a significantly increased risk both of going on to become even more intoxicated and of suffering injury. By the time the effect of loss of self-control or judgment can be described as "moderate", that stage of significantly increased risk has arrived. 59 The obligation of reasonable care seems to me to involve a refusal of service if it can be seen that the provision of alcohol is certain to, or probably will, lead to intoxication such as I have defined it. A fortiori, when alcohol is supplied to someone who has already reached such a state of intoxication. I have said "certain to, or probably will". Given the facts of this case, it is unnecessary that I go on to consider lesser degrees of possibility. 60 It was neither pleaded nor argued that there was also a duty of care owed by the Second Defendant to the First Defendant and accordingly, I need not consider that question. 61 Was there a breach of that duty which I have described? Before this question can be answered in the affirmative, it seems to me that on the facts of this case it must be shown that the Second Defendant served the Plaintiff alcohol at a time when it was apparent she was intoxicated, or at least approaching that state. Of course there are other matters that must also be considered. The proposition I have stated but constitutes an essential minimum. 62 Combined with her evidence that the Plaintiff was drunk at midday, the evidence of Mrs Hughes that at about 12.30 the Plaintiff had a full bottle of Spumante leads to the conclusion that the Plaintiff was served that bottle shortly before that time. Given the Plaintiff's wont to drink that day, it is in the highest degree unlikely that a full bottle would have remained in that state for long. Given the Plaintiff's state, which on Mrs Hughes' evidence was obvious, I would regard the supply of that bottle as a breach of duty. 63 There is no direct evidence that the Second Defendant served the Plaintiff again that day. Mrs Pringle said that sometime between 2 and 3 pm she refused to serve the Plaintiff and the possibility exists that any alcohol drunk by the Plaintiff after the 12.30 bottle may have been purchased by her friends or the group she was with. Nevertheless, I think the probability is that the Plaintiff was served alcohol again. Given her access to the Spumante bought by Mrs Hughes, - access apparently used - the period of only 2 hours between about 10.30 when the free drinks ceased and about 12.30 when she was seen with the full bottle is sufficiently short as to make it more likely that she bought a further 1 rather than 2 bottles within that time. 64 The fact that the Plaintiff as an adult might fairly be assumed to have knowledge herself of the consequences of ingestion of alcohol is also relevant to the question of breach. However, the state in which the Plaintiff was in leads to the view that in this case that factor does not provide a sufficient answer to the suggestion of breach. 65 Any consideration of the question whether the Second Defendant breached its duty of care to the Plaintiff, as was causative of any damage, must include consideration of the availability of, and Mr Pringle's endeavours to persuade the Plaintiff to use, the club's courtesy bus and a taxi cab. Had the Plaintiff been sober and in full possession of her faculties at the time, it would be hard to argue that her decision not to use these facilities and then walk on the road meant that, vis a vis the Second Defendant. the accident was all her own fault and something for which the Second Defendant bore no responsibility. However the Plaintiff was not sober. As both common experience indicates may happen, and as Mr Pringle said when asked as to the Plaintiff's response to the courtesy bus, "As with most drunks do when you turn the grog off them, they become upset". Against that experience, the matters referred to in the first sentence of this paragraph are not sufficient to prevent the Second Defendant's contribution to the Plaintiff's intoxication amounting to a breach of its duty of care. 66 Applying the test in Wyong Shire Council v Shirt 146 CLR 4 at 47, it seems to me inescapable that a reasonable man in the position of the Second Defendant would have foreseen that his conduct - in supplying alcohol to the Plaintiff, someone who could be seen to be intoxicated or who would probably or certainly enter that state on the consumption of that alcohol, involved a risk, or increased risk, of injury to her. It may be accepted that the probability of harm was low, although the magnitude of any harm should it eventuate was liable to be high. There was little, if any, expense, difficulty and inconvenience in taking alleviating action - declining to serve the Plaintiff once intoxication or any likelihood of it became apparent - and no conflicting responsibilities. The making of a greater profit does not come within that description. In my view a reasonable man's response to the risk would be not to incur it. 67 Thus, in my view the Second Defendant was in breach of its duty of care to the Plaintiff. 68 There can be no doubt that the supply of alcohol in the form of what I may call the 12.30 bottle and the later one, was a contributing cause of the injury she later suffered.

[11]

Contributory Negligence and Contribution 69 It was submitted on behalf of the Second Defendant that I was required to approach the issue of any contributory negligence by the Plaintiff in accordance with the decision in Barisic v Devenport (1978) 2 NSWLR 111. That case, Daniels v Anderson (1995) 37 NSWLR 438 and Powell JA in Kelly v Narrandera Shire Council (unreported, NSWCA, 16 December 1998) make it clear that in assessing what is a just and equitable reduction in the Plaintiff's damages and what is her share of the responsibility for the damage there is involved a comparison of the responsibility of the Plaintiff with the combined responsibilities of the Defendants. Samuels JA in Barisic v Devenport (at 153) seems to have thought that comparison inappropriate but, with respect, it seems to me difficult to reconcile his Honour's approach with the reference in s10 of the Law Reform (Miscellaneous Provisions) Act to "share" in the responsibility for the consequences of their combined conduct. Of course, one must remember that the test of the Plaintiff's conduct is not by reference to reasonable care for others but for the Plaintiff's own safety - Daniels v Anderson at 574. 70 In this exercise it is not inappropriate to reflect on the relativity of their culpability and of the "causative potency" of their acts and omissions - see Barisic v Devenport at 128 and 132; Daniels v Anderson at 572. It may be that precise quantification should not occur until the end of the exercise but that does not seem to me an adequate reason why characterisations of conduct or expressions of relativity should not be used. 71 Doctor Olsen concluded that unless a pedestrian was either intoxicated to a very excessive degree or taking no precautions to avoid colliding with an oncoming car, a pedestrian would be aware of an approaching car, regardless of whether its lights were on high or low beam, long before its driver could become aware of the pedestrian. That conclusion I regard as self evident. For the Plaintiff to have remained on the road with the First Defendant's car approaching as the Plaintiff apparently did was, assuming she still had a moderate command of her faculties, a gross disregard of her own safety. To walk out into the path of the First Defendant's vehicle (if that was what the Plaintiff did) when there was obviously no need to do so may be similarly described. Insofar as the Plaintiff's faculties were substantially impaired by alcohol, such remarks must be muted somewhat but one then must consider whether that impairment was, and the extent to which it was itself, a departure from the standard of care of a reasonable man for his own safety. 72 No doubt most people who become intoxicated suffer no injury in consequence, and this even if the intoxication be of moderate or greater degree. However, the state reached by the Plaintiff on 26 June 1994 can only be described as gross. One may accept that it is probable that there was no conscious decision to reach the state she did and that, in part, that state was but the product of the disinhibition and lack of judgment arising from an earlier and less intoxicated state. 73 There was no specific evidence as to the Plaintiff's prior experience in the area of intoxication. However, she had worked in a buffet car on the railways, as a waitress in a restaurant on South Molle Island, in a nightclub on 2 occasions and at a tavern on Mermaid Beach on the Gold Coast. She became function manager of that establishment. It is thus a legitimate inference that, at least from observation of others, she had what may be described as the minimum adult knowledge of the potential effects of alcohol. 74 It is also to be inferred that at some time during the morning of 26 June she consciously set out to drink a significant amount or must have realised she was doing so. If she did not set out to achieve a degree of intoxication, at some stage during the morning she must have realised that that was where she was headed or had reached. Yet she continued and later, given by Mrs Hughes at least 2 occasions to stop, elected not to. There is no evidence she gave any thought to danger and I would infer probably did not do so but I would nevertheless infer that her actions in drinking as she did constituted a substantial lack of reasonable care for her own safety. Indeed, I would draw that inference in respect of what may be described as her early drinking, prior to the time when it may be said that she might have been so drunk as not to know or have a reasonable appreciation of what she was doing. 75 I would assess the Plaintiff's responsibility for the damage she suffered at 40%. I appreciate that that is these days a relatively high proportion of responsibility to attribute to a Plaintiff. In that regard, I was pressed with the remarks of Kirby P in Mitchell v GIO (1992) 15 MVR 369, those of Zelling J in Evers v Bennett (1982) 31 SASR 228 at 234 (Some further remarks attributed to King CJ in that case, would seem to have come from a different source.) and of Macrossan CJ in McPherson v Whitfield (1996) 1 Qd R 474 at 478. It is not necessary that I set these out. It is sufficient to say that I have read them, together with the cases of Teubner v Humble (1963) 108 CLR 491 and Pennington v Norris (1956) 96 CLR 10 referred to in Evers v Bennett, and a number of others. I would however make one comment. Zelling J's comparison between the trial judge's description of the conduct of the plaintiff in Teubner v Humble to "verging on the suicidal" and the High Court's apportionment in that case ignores the criticism of that description in the High Court - see at 498-9, 502 and his Honour's reference to the factors which led the High Court to vary the apportionment in the earlier case is incomplete. 76 Secondly, while I accept that there is the distinction adverted to by Macrossan CJ between someone who becomes intoxicated when there is no "reasonably foreseeable specific risk to his safety" and someone who becomes intoxicated when there is such a risk, I am by no means disposed to regard the former situation as one where there is not likely to be contributory negligence. Indeed I do not read the judgment of the Chief Justice as going so far but the submissions in this case did, or came close. 77 Whatever risks may exist or be apparent, circumstances not infrequently change, even within a short time. While I appreciate the test is one of reasonableness, not perfection, it seems to me that to render oneself significantly less capable of dealing with whatever may occur - perhaps due to the conduct of others perhaps to the loss of one's own self control - is to take a significant risk of no significant utility. 78 But be that as it may, the Plaintiff here, voluntarily and in full possession of her faculties, embarked on a drinking spree. While it may not be literally true, it is not an unfair description of her condition at the end to say that she had made herself blind drunk. I, and though I accept this is not the test I venture to suggest the community generally would, regard her conduct as a very substantial departure from the standard of the reasonable man (or woman) taking reasonable care for her own safety. It seems to me that, having regard to the Plaintiff's share in responsibility for the damage, it is just and equitable that her damages be reduced by 40%. 79 As between the Defendants themselves, the different character of their negligence makes any comparison of their several responsibilities more a matter of judgment rather than reasoned analysis. To continue to supply alcohol to someone quite intoxicated is calculated to lead to problems. To do so consciously is irresponsible. But it is not usual that such conduct results in significant injury. And the First Defendant did have plans and a bus to deal with persons who could not make it home on their own. 80 On the other hand, while I see nothing in Mrs Lawrence's conduct which could be called both conscious and irresponsible, the driving of a motor car without keeping a proper look-out not uncommonly does result in serious injury. In the end, I do not regard it as possible to say that one was more responsible than the other. It seems to me just and equitable that, as between themselves, they should share equally their responsibility for the damage. 81 Assuming each Defendant is solvent, or has a solvent insurer behind him), the result of my findings will be that the damage which the Plaintiff has suffered will be borne by the parties in the proportions of - Plaintiff 40%, and each Defendant 30%. Against the possibility that the approach for which I understand Barisic v Devenport to be authority is wrong, I would add that I regard each party as having substantial responsibility for the damage that occurred but that the Plaintiff's responsibility is somewhat higher than that of either of the Defendants.

[12]

Accident Sequelae 82 After the accident the Plaintiff was taken to Tweed Heads Hospital and then on to Princess Alexandra Hospital in Brisbane. She was suffering from a closed fracture of the left tibia and fibula and from a compound depressed left frontal skull fracture with some intra-cerebral haematoma. On awaking in hospital, the Plaintiff was in a great deal of pain particularly down the whole of her left side and head, and confused. She was drugged for a long time but moved to the rehabilitation section of the hospital on 14 July and discharged on 25 July 1994. She was then in a wheelchair which she used for some 6-8 months in all, graduating then to two full length crutches which she also used for about 6 months. 83 On 19 January 1995 while still using the underarm crutches, but not yet weight bearing on her left leg, the Plaintiff was at her sister's place. She attempted to enter her sister's car with a view to visiting the hospital for a check-up and fell. She slid down a bank and slammed her leg into a tree breaking her left femur. This required further plaster which remained in place for some 3 months until about April 1995. The Plaintiff thereafter used a wheeled walking frame for some 2 months. With the frame she was able to attend to shopping and the like. 84 The Plaintiff gave evidence of a number of persisting difficulties she experiences in relation to her left leg. Amongst these she recounted the presence of an unattractive haematoma on her left hip which varies in size and protrusion of the knee area where reset, resulting in her inability to straighten her leg out flat. Of most significance however is a discrepancy in length between her left and right legs. The former is approximately one inch shorter resulting in pain in the hip area when she attempts to walk without the aid of built up shoes. To this end she gave evidence of building up her own shoes at home due to insufficient funds to have them done professionally by an orthopaedic shoe maker or even, at a cost of $50 a time by Mr Minute. 85 The Plaintiff also said that she experienced back trouble when she sat for a long period of time. Standing for more than 15 minutes is difficult. She needs a stick if walking on rough ground or for any length of time. She cannot walk on sand, and stairs are a problem. 86 The Plaintiff asserted that since the accident, she has difficulty in remembering and has a tendency to misplace things. From time to time she has difficulty in finding words. She gave evidence that she becomes confused. Given my view of the Plaintiff's credibility I accept that this occurs at times, although it is appropriate to record that this confusion was not evident in the witness box. On the other hand, my impression was that at times the Plaintiff lost concentration and required questions to be repeated not simply because they may not have been heard. 87 She has difficulty in hearing on her right side and difficulty in reading, for example the telephone book. She has required glasses. Bright lights are a problem, even the moderately bright, largely natural, light in the Lismore courtroom. She has an inability to sleep without medication. Her libido is lower than before. 88 She also suffers from headaches. These may occur daily or there may be a gap of a week between them. With medication, they last between 1½ and 2 hours. The Plaintiff also suffers from depression, relieved since the beginning of 1999 with medication. Details of this and other medications and a summary of the Plaintiff's evidence as to their use (by way of indication of what I allow) is tabulated later in these Reasons. She has put on about 2 stone. 89 The Plaintiff has also been left with a scar. She described this as proceeding downwards from her crown across the left side of her head, through her left forehead, into her left eyebrow and finally veering away towards her cheekbone. She gave evidence of the scar still being evident, albeit very faintly, which she described as causing her a great deal of discomfort and distress. This she experiences in the form of headaches and an inability to both grow her hair past a certain length or wear hats due to problems with pressure. 90 Prior to the accident the Plaintiff was fit and enjoyed snow and water skiing, swimming and body surfing although since she began to run 2 hair salons, which seems to have been in 1994, she had little time for these activities. These recreational activities are now beyond her. She had no problems with her hearing or sight and generally cycled to wherever she wanted to go - about an hour or hour and a half cycling a day. 91 On a psychological level it would appear that since the time of the accident the Plaintiff has become addicted to playing poker machines. She explained this on the basis of the ability this affords her to blend into an environment where she feels her disabilities are not noticed and conceded playing them for long periods of time whenever she has sufficient money to enable her to do so. Of further significance in this regard is evidence given by the Plaintiff's son that since the accident she has become very stressed, he describing her as moody, unable to handle every day situations and just unable to cope generally. 92 There was no cross-examination of the Plaintiff on her accounts of injuries and disabilities. Counsel for both the Plaintiff and one of the Defendants tendered medical reports and counsel for the Plaintiff tendered a schedule of names of doctors who, on behalf of one or other of the Defendants had seen the Plaintiff but whose reports had not been served. Their specialty was not identified. Some of the statements and opinions in the medical reports contradict the Plaintiff but none of the medical witnesses was cross-examined. At the time the Plaintiff's reports were tendered, counsel for the Second Defendant sought an order under s136 of the Evidence Act. I indicated that I was disposed to make some such order but suggested that counsel confer first to identify anything of significance. The matter seems thereafter to have been forgotten. However, I have approached the writing of these Reasons as if such an order had been made. More precisely, I have not regarded the history the Plaintiff gave the doctors as evidence of the truth of the facts of matters in her favour. 93 It is however fair to say that the matters of difference, while not insignificant, do not loom large in the overall picture and no doubt the cost of requiring specialists to attend in Lismore where the case was heard may well have been unjustified. I have at an early stage of these Reasons indicated that I was disposed to accept the Plaintiff as a truthful witness and accordingly, I propose to assess the damages primarily on the basis of her evidence. 94 Since her accident the Plaintiff has received assistance from members of her family and others in connection with her care. That situation commenced in July 1994 upon her initial discharge from hospital. At this time she commenced living with her brother, Luke Cole and his wife Sharon at their house. This arrangement continued for a period of approximately 4-6 weeks during which time the Plaintiff was rendered considerable assistance due to the fact that she was wheelchair bound. Assistance was again rendered to the Plaintiff upon her discharge from hospital following the incident of 19 January 1995. This was provided by her son Daniel who gave evidence of assisting her with cleaning, laundry and all transportation. Asked to estimate the duration of this he approximated a period of 3 months, averaging 6 hours per week. According to the Plaintiff she continues to require assistance with shopping, transportation and the carrying of parcels. This is ordinarily provided by either her son Daniel, friend Barry Anderson or Joan Markwell and the Plaintiff estimated this takes approximately 1 hour each week.

[13]

Employment Past and Future 95 The Plaintiff was born on 4 April 1949 and left school at aged 15. She has one son born on 15 April 1975. 96 On leaving school the Plaintiff undertook and completed a 4 year apprenticeship as a hairdresser and at the time of the accident she was engaged with a partner in operating two hairdressing salons. 97 Evidence was given by the Plaintiff's former business partner, Eileen Ross that the Plaintiff was the most creative, artistic stylist that she had ever worked with. Although initially requiring retraining due to an extended absence from the industry, according to Ms Ross the Plaintiff very quickly regained her skills. At the end of 1990 Ms Ross travelled to the United States for a period of 3 months during which time the Plaintiff assumed the position of manager of Ms Ross' Kirra salon, Centre Court Hair Fashions. Asked for an assessment of her managership during this period, she responded "I thought she had run it better than I had." Following from this and seeing her regain her skill, Ms Ross discussed with the Plaintiff the opening of a second salon, this time in partnership. This resulted in their jointly purchasing the Spilt Enz Salon at Tweed Heads in which Ms Ross described herself as more of a silent partner, not working on the floor herself. Asked what became of this business she replied "it just blossomed". In early 1994 she and the Plaintiff opened a further salon at Burleigh Heads. She gave evidence of the Plaintiff's considerable management skills in relation to both salons, she having assumed sole responsibility for all book work, wages, hiring and firing. She described the Plaintiff as "full of enthusiasm, very organised and very, very good." At the time of the accident the Plaintiff was working full time - generally from 8 am to 5 pm on weekdays and 7.30 am to 2 pm on Saturdays. 98 Over her adult years prior to commencing the hairdressing business, the Plaintiff had engaged in a variety of occupations including that of waitressing, function manager, bridge painting and running a craft shop. She made items to sell in the shop and has also taught such skills to adolescents. Although my impression is that there were periods when the Plaintiff was not earning income, these seem to have been short and I am satisfied that but for the accident, the Plaintiff would probably have remained in employment until retirement age. She placed that at aged 60 and said that she and her partner had planned to purchase further hairdressing salons and in retirement just move around them in a supervising capacity. 99 In about November 1994 and whilst still on crutches the Plaintiff returned to work. She would sit on a special chair supplied by or with the help of the Commonwealth Rehabilitation Service. Prior to January 1995 this activity occupied as much as half to one hour per day. About 8 weeks after her fall in January 1995, she recommenced this activity and in this period it extended to something of the order of three half days per week. This continued until about May 1999, not 1998 as the Plaintiff said at one stage. 100 The Plaintiff stopped then because business had dropped off, she not being there all, I infer much, of the time. She also said that the quality of her work had deteriorated and she frequently needed assistance. Ms Ross gave evidence that upon the Plaintiff's initial return to the Split Enz salon she worked at a much slower place, had lost confidence and was unable to concentrate. The Plaintiff's son also gave evidence to the effect that his mother was unable to handle part time work following the accident.

[17]

108 The figures in the above tables provide some corroboration of the Plaintiff's evidence as to the extent of her work subsequent to the accident. I also take the view that they provide some corroboration of her evidence as to her ability to work. 109 No documents were tendered for the period after June 1997. The evidence is not entirely clear as to how many half days the Plaintiff worked in this period and it does not seem to me that I should infer she earned nothing. The figures in the above table for the last 2 years give some guide (though probably overstate the position as the business deteriorated) and in the result, I am disposed to act on the basis that the $6,435 figure given in the Plaintiff' "Synopsis of Damages at Common Law" represents the Plaintiff's earnings since the accident. That figure may certainly be treated as an admission against her but it seems to me likely to be sufficiently close to the mark to use against the Defendants also. The topic was not the subject of specific mention in the addresses of counsel appearing for them. 110 A question arises whether for the period after June 1999 and for the future, the Plaintiff had or has any earning capacity. I am satisfied that she has none as a hairdresser or, with one exception, in any of the other occupations she followed prior to the accident. I do not think her mental state is up to the management or bookwork which so impressed Mrs Ross. The one reservation I have concerns the involvement with craft work or craft selling which the Plaintiff had prior to the accident. Indeed the Plaintiff conceded that she might be able to do some very limited work along these lines if it were available. However, that qualification is significant as is also the Plaintiff's age. She is now nearly 52. She does have the health and other problems that I have mentioned and I think the practical result will be that she will not in fact earn money - certainly above the cost of fares etc. - in this occupation. Thus for the period after June 1999, I regard the Plaintiff as having no earning capacity. 111 The figures above provide adequate support for the claim that, but for the accident, her gross income would have been $15,181. Tax, of course, will need to be taken into account. Based on the Plaintiff's evidence that she would have worked to age 60 the calculation should be at least until that age. However in light of the Plaintiff's evidence of intending to own and supervise saloons thereafter and of their ownership of saloons prior to the accident, I would allow 2 further years, i.e. until the Plaintiff is 62. (The period would probably have been longer and the income per year less.) The usual 15% for contingencies should be deducted.

[22]

Past and Future Griffith v Kerkemeyer 117 In her Part 33 Particulars, dated 18 February 1999 the Plaintiff claimed under this heading $5,000 calculated at the rate of $10 per hour for the period from the accident to the date of the particulars. $10 per hour was said to be the "average charge Commercial rate payable to an approved Home Care Worker as costed by Domicare during the relevant period". There was a further claim, also in the sum of $5,000 for the future. 118 I have dealt with this topic to some extent under the heading "Accident Sequelae". The Plaintiff verified the accuracy of a document which became Exhibit C and which set out with more particularity the assistance which the Plaintiff said had been provided. That document recorded the number of hours to date as 708 and the hourly rate as $14.80, resulting in a total claim of $10,478.40. The hourly rate was said to have been taken from Furzer Crestani Services, Litigation Support and Economic Loss Assessment, 6th edition, October 1998. I accept Exhibit L as setting out the hours of assistance needed, notwithstanding some evidence, inconsistent in its detail, from her son. 119 As I have said, evidence from the Plaintiff supported the view that for the future, the assistance which the Plaintiff needs is 1 hour per week. In a "Synopsis of Damages at Common Law" which Mr Wheelahan QC advanced as part of his submissions, the value of this claim for the future was said to be $16,705.80, based on the $14.80 hourly rate and a multiplier of 1128.67 (the source of which was stated and not challenged). 120 In written submissions the Second Defendant's response was that "the Plaintiff is entitled to claim the one hour per week that she does" but apart from a general statement that "the Second Defendant does not concede the synopsis of the damages as set out by the Plaintiff" did not address the claim for the past. 121 Objection was taken to the document which became Exhibit C insofar as it went outside the Part 33 Particulars but as the information in it tended to provide support for the claim as stated in the Particulars, I admitted the document. I indicated however that at that stage I regarded the Plaintiff as bound by her Particulars. There was further objection which I took to be on similar grounds to evidence on this topic from the Plaintiff's son. 122 There was at no time any application to amend the Particulars and, given the fair warning the Plaintiff had, in the circumstances outlined, the Plaintiff is bound by them. Of course, regard must be had to their date. The period between the date of the accident, viz 24 June 1994 and that of the particulars, viz. 18 February 1999 was a little under 4 years and 8 months. That between the date of the accident and the hearing, 31 May 2000 was a little over 5 years and 11 months. If the claimed 500 hours is increased proportionately to the number of days involved, the figure derived is about 637 hours. Having regard to the global way in which it was formulated, I see no need to make a corresponding reduction in the claim for the future. 123 While a minor variation in rate between February 1999 and May 2000 might have been expected, the change from $10 to $14.80, calculated to be an average over the period, cannot be so described. There is no evidence which does enable me to make any minor variation in rate and in these circumstances, it seems to me that I am not justified in allowing any higher rate than the $10 particularised. Accordingly the claim is allowed against the Second Defendant as follows:

COLE v LAWRENCE

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Cases Cited (11)