I turn first to consider the expert medical evidence concerning the nature and direction of the force which resulted in injury to the plaintiff's cervical spine. Three doctors specializing in spinal injuries were called to give evidence on this matter. Dr Davies and Dr Hill who treated the plaintiff initially, and Dr Yeo a specialist consultant in the treatment of spinal injuries practising in Sydney.

I will not analyse the evidence they gave on matters other than the degree and nature of force which was probably applied to cause the plaintiff's injury. From this evidence some assistance may be obtained in determining whether in the light of other evidence the plaintiff suffered her injury by diving vertically on to the pool floor from a diving block or diagonally into the end wall of the pool and/or the pool floor near it as she attempted to cut the corner.

Dr Davies who treated the plaintiff at Princess Alexandra Hospital said that she suffered a compression and flexion type injury fracturing the C4, C5 and C6 vertebrae and that a significant amount of force was necessary to cause the fractures. An experiment performed some years ago indicated that about 600 pounds per square inch needed to be applied vertically to cervical vertebrae then being tested which were so flexed that the force might be transmitted directly down the spinal column before they fractured. He said that the injury suffered by the plaintiff was to be distinguished from a hyper extension injury which would have been expected had similar force been applied in the region of her forehead rather than to the very top and centre of the skull. He said that in his experience dealing with injuries of this sort, most people who dive forwards sustaining such an injury have tucked their head down with their chin lowered which in effect straightens out the naturally curved cervical vertebrae so that force applied to the top of the head while the vertebrae are so positioned, is transmitted directly along the axial spinal processes.

There was no evidence of abrasion or external injury to the plaintiff's head. He said examination of the x-rays indicated damage to the spinal structure consistent with the head being rotated slightly to the left at the time force was transmitted when it came into contact with the wall or floor of the pool. He said that x-rays demonstrated the likelihood of an element of rotation although "not a huge amount". It was consistent with the deforming force causing injury to the spine in effect bending the plaintiff's neck from left to right. In other words at or about time of impact the plaintiff's head was forced from left to right and he said that it was possible that an impact could have been suffered as she was cutting the corner of the pool so as to come into contact with the end wall of the pool at an angle so that the head was pushed from left to right. He said however that had she dived off a diving block a little off the vertical path so that her head struck the bottom of the pool when bent slightly to the right, the force applied might also have caused the neck to bend from left to right and thus produce the injury recorded on the x-rays. Essentially it was his view that it was the angle of the body to the surface of the pool structure with which the plaintiff's head came into contact which explained the damage recorded in the x-rays.

Dr Hill, the Director of the Spinal Injuries Unit at Princess Alexandra Hospital who also treated the plaintiff gave evidence concerning the nature of the force that might have caused her injury. He and Dr Davies, both of whom treated the plaintiff were called to give evidence on the basis that she had hit her head on the floor of the pool when diving from a diving block. This was the information apparently that had been confirmed by the plaintiff and presumably by other persons connected with the plaintiff's action. He agreed substantially with the opinion of Dr Davies concerning the nature of the force and its application which resulted in the plaintiff's fractured cervical vertebrae. He said that the main force was a vertical blow with a component of flexion and that the injuries to the plaintiff's spine were consistent with those suffered from diving into reasonably shallow water. He said that he had never really considered whether she may have suffered the same injury by diving into a swimming pool wall as she cut the corner. He said that had she done that the blow to her head would have been "inevitably a sort of glancing blow". He then expressed the view that such a blow was unlikely to cause the sort of injuries that she had and that "I cannot conceive how that sort of injury would occur by hitting the side". He continued -

"If it had been a horizontal dive and she had gone straight into the side it would have to be an almost sort of kamikaze type of thing. I can understand people diving into the shallow end of swimming pools. I find it very hard to believe that they would dive straight across into a solid wall but conceivably it could have caused that".

On my evaluation of this evidence, Dr Hill was departing to some extent from expert evaluation of the plaintiff's injuries and the nature and application of force that might have caused them and was embarking upon a consideration of which of the two explanations for her injury canvassed in court was the more probable.

He said that the structures of the cervical vertebrae and their configuration are such that normally with the application of vertical force the front part of the vertebra will collapse before the rear part. Apparently, this causes the breaking or dislocation of the spinal column at the rear which leads to nerve injury producing tetraplegia. He said that the bone injury recorded in the x-rays was consistent "with a vertical blow right on the top of the vertex of the head"and that to achieve that injury she must have hit the floor of the pool almost at right angles to it. He agreed however that if she had dived into the side wall she could also have hit it almost at right angles with the very top of her head.

Dr Hill agreed that he had never given any consideration prior to coming to court - to the question whether the plaintiff might have injured herself cutting the corner. Indeed he said that even when he went out to Surat to inspect the swimming pool involved:-

"I was basically looking to see whether there were blocks at the end of the pool and so forth which would give you more height above the water and so forth."

He expressed the view that the injury to the top of the plaintiff's vertebrae probably resulted from an impact between the centre of the plaintiff's head and the surface with which it came into contact - "probably a vertical impact coming from the centre of the head straight down" and that upon impact the cervical spine "telescopes a bit and the body slows down as the bones in the vertebrae crush."

He confirmed that a hyper-extension injury which would result from impact towards the front of the head rather than on its apex would produce bruising on the forehead and/or face.

He said that a head injury of the sort sustained by the plaintiff would impair consciousness.

Interestingly Dr Hill said that even if the plaintiff standing on the edge of the pool simply fell in head first - presumably overbalancing - she could still go straight to the bottom and if as the result she suffered a blow to the top of the vertex of the skull it would produce the sort of fractures that the plaintiff in fact suffered. He said the injuries shown on x-ray were inconsistent with any sort of shallow dive and were consistent only with a dive almost perpendicular to the surface with which the plaintiff had come into contact and reaffirmed that if the plaintiff had been merely bending forward over the pool and fallen in accidentally she might still have suffered the same type of injury which she did suffer. Indeed he pointed out that a person can break his or her neck by diving into knee deep water in which he or she is standing.

Dr Hill gave a good deal of evidence as to the effect of momentum of a body as it passes through water etc. Although interesting, this seems to be of less weight than his expert evidence concerning the nature of the impact that probably produced the plaintiff's injury and probably less within his field of expertise.

He said that he had seen two persons who had suffered cervical spine fracture upon impact while travelling through the water in a horizontal direction. He agreed that a person diving into the side wall of the pool at a slight angle would generate a force sufficient to bend the head sideways upon impact and mentioned a case where a patient having swum the length of a pool and attempting an extra stroke with his head slightly flexed, brought the top of his head against the wall causing a wedge fracture of the 5th/6th vertebra, partially paralysing him.

He said that one possible explanation for the plaintiff's injury was that she had been standing on a starting block leaning over before she simply fell into the water. He said that for the first metre as she went vertically through the water she would be actually accelerating but that that would not be "the most common way of doing it". He agreed that the slight displacement of the body of the C4 in relation to the C5 disc suggested an element of the deforming force bending the neck from left to right which was consistent with her coming into contact with the side of the pool but equally consistent with hitting the bottom of the pool "at a slight angle".

Dr Hill expressed the view that accepting the plaintiff's version of events it was probable that she had suffered a transient concussion as a result of brain injury upon impact with the wall or floor of the pool. If she were able to see her sister's feet after that impact, she clearly lost consciousness, regained it momentarily and then lost it again. He said that he would not have expected a condition of transient concussion to produce a momentarily lucid interval of the sort to which the plaintiff swore.

Having regard to this medical evidence, I have treated with some reservation the evidence of the plaintiff that she did see her sister's legs moving towards her in the water when she looked to her left while her head was submerged in the water after she had entered the water and obviously suffered injury. Dr Hill also expressed the view that if she did suffer transient concussion producing retrograde amnesia she would normally recall events prior to the injury within the first few days. He said he would not have expected her to suddenly gain recollection of events preceding her injury four years or so later - as the plaintiff asserted to be the fact with respect to recalling standing on the starting block before losing consciousness.

DoctorYeo who had never examined the plaintiff also gave evidence concerning the nature of the force which would be likely to cause the injury she suffered. He referred to the reports of Dr Hill and Dr Davies and relied upon their content as well as what was put to him in the course of his oral evidence when expressing views as to the nature and direction of the application of force which produced the plaintiff's injury. He said that the plaintiff's injury in his experience was an unusual one; normally in a diving injury fractures occurred at one or two levels of the cervical spine; the impact sustained by the plaintiff however was more like the sort that was sometimes inflicted upon the occupant of an overturning motor vehicle where the roof caved in with considerable force. He said that he concluded from this that the momentum of the plaintiff's body at the time the top of her head came into contact with the pool structure was greater than it had been with other patients who suffered injury in diving accidents and that her head must have been held in a position so that the cervical spine had its curvature almost straightened at the time of impact. Dr Yeo expressed the view that had the plaintiff dived from a diving block rather than from the top of the wall of the pool the effect would have been to increase the momentum of a dive "from a more vertical position".

Doctor Yeo found it difficult to explain the damage to the three levels of the cervical spine which had not been "translated to soft tissue injury at the point of impact". He said however that there was no doubt in his mind that the plaintiff suffered her injury when she entered the water - however that entry was effected - and that the shearing effect of the injury must be related to the angulation and rotation of the head at time of impact; the whole weight of the head must have rotated and flexed and the force so generated transmitted along the "susceptible cervical spine". A significant consideration was the angle at which the cervical vertebrae were damaged. He said it was not possible to sustain the sort of injury suffered by the plaintiff other than by impact with the bottom or wall of the pool.

I mention only briefly that other medical evidence was to the effect that sometimes people suffered similar injuries by diving into other people in a pool. There is absolutely no evidence in this case to suggest that the plaintiff suffered her injury in such a way. Dr Yeo summed up his opinion -

"We therefore in the field of spinal cord injury - I believe all of us have agreed that there must be a degree of impact occurring with the bottom of the pool or the beach surface and in that translation of energy it is the angle that makes the difference as to whether one has merely a sore neck and no spinal injury or whether one becomes permanently tetraplegic".

"There is a translation of energy and momentum of impact at a particular angle which is critical to the cervical spine but not necessarily identified in any soft tissue damage. That is common experience."

He agreed that before giving evidence he was "given to understand" that the plaintiff had dived into the swimming pool from a starting block "and my interpretation of her pathology fitted more appropriately with that concept of diving from extra height to give her the momentum and force of impact that I would have expected to achieve fractures at three levels".

Presumably Dr Hill's visual inspection of the diving blocks at Surat Pool was motivated by the same expert consideration. Dr Yeo agreed that if she ran and dived into the end wall the running would increase the momentum of the dive in the same way as diving from a diving block. He agreed that she could have suffered the same injury whether she had dived into the pool vertically or made a running dive across the corner of the pool colliding with its end.

Doctor Yeo agreed that the slight displacement of the body of C4 to the right in relation to C5 indicated an element of deforming force bending the neck from left to right.

I turn lastly to the expert evidence of Mr Hall called for the plaintiff. Mr Hall has been a diving coach for 20 years. He had also dived at international level as a younger man. He has had some experience in spinal injuries and in the dangers of diving. He said that diving was "not natural" for a human being and that the safest way to enter a pool was by climbing in by ladder. He observed -

"The totally unskilled and unconditioned person is normally going to come to grief off the edge of the pool into the water unless they have had instructions or unless they are one of the very few co-ordinated and talented people that I am always looking for."

He said that most people could be placed into one of two groups. The first group was one where the divers lifted their heads thus raising their centre of gravity. He said that perhaps 65 or 70% of untrained people come within this category. He said the balance of 30 or 35% of untrained people make the mistake of dropping their chin and getting a low centre of gravity which induces an over rotation which leads to vertical entry into the water. The plaintiff had no training in diving. On her evidence she had frequently dived into the shallow end of the pool without touching the bottom. I infer from this that she was within the category of 65% or 70% of such people who lift their heads when diving and so do not over-rotate into a vertical dive.

He said that in his experience it was a quite natural reaction for a person after entering the water to let the arms break, thus increasing the velocity towards the bottom of the pool. He said the height from which a person dived was important; the higher the diver was, the more easy it was to get the hips up and the head down but this was difficult to achieve off the edge of the pool and takes a lot of practice and repetition for the 65 or 70% of untrained people to whom he referred to achieve a "clean rotated" dive off a low side i.e. a dive virtually of a vertical kind towards the bottom of the pool. He looked at photographs of the Surat Pool and expressed the view that if one dived off a diving block at the shallow end of the pool it would be easier to achieve a vertical dive than might otherwise be the case. The explanation of course is that the person making the dive from a block has a greater distance between the standing position on top of the block and the surface of the water than would be the case if the dive was being made from the edge of the pool itself.

Mr Hall was asked whether if he were executing a running dive and in the course of that had his hips up and his head down to an angle of say 15° what was likely to happen. He said -

"Depending on the component of horizontal momentum the most likely thing to happen when your hips are up and chin down is you are going to have more chance of achieving a vertical entry but this is qualified by the intensity of the horizontal thrust."

As I understand the evidence of Mr Hall and the doctors to which I have referred it seems clear that the plaintiff could have achieved a vertical or almost vertical penetration of the water at the shallow end of the pool either by diving off the diving block in a way involving "an over rotation" or by effecting a running dive across the corner of the pool with her chin tucked in with sufficient horizontal momentum to increase the prospect of her going into rotation. Were the plaintiff simply standing at the edge of the pool not on a diving block it would be more difficult for her to achieve a sufficient rotation of the hips to achieve a vertical dive so that the top of her head might come into contact with the floor of the pool.

Nevertheless it is the view of Dr Hill who has made a study of circumstances which might lead to spinal injury that somebody merely standing at the edge of the pool and falling into it in a forwards direction might achieve a vertical dive so that the head impacted with the bottom of the pool.

Looking at the evidence of the diving expert generally, it seems to me to do no more than confirm that the injury suffered by the plaintiff on 17 December 1991 having regard to the approximate location where she was found floating in the pool and the nature of the impact which caused her cervical spinal fracture is equally consistent with her diving either from a starting block at the end of the pool in a vertical fashion so that her head came into contact with the bottom or her diving from the edge of the pool in a similar fashion or indeed her simply falling into the pool head first so that she effected a vertical penetration of the water bringing her head into contact with the bottom of the pool. Again it seems to be equally consistent with her having dived across the corner of the pool so that her head came into contact either with the end wall of the pool or with the floor of the pool near the end depending upon the depth of the dive and the degree of rotation that was achieved if it was a running dive.

Although some of the doctors expressed the view that it would be difficult if not indeed extraordinary for the plaintiff to effect a vertical dive off the edge of the pool or off the block at the end of the pool - particularly having regard to the obvious danger in doing so it is equally clear that Dr Hill concluded that it would also involve a "kamikaze approach" to dive across the corner of the pool so that the head came into contact with the wall at the end or the pool floor near it.

I observe merely that if the explanation for the plaintiff's injury is other than a voluntary dive of some sort - i.e. the other possible explanation canvassed in the evidence that she simply fell into the water, perhaps accidentally and hurt herself, it would seem to me difficult to infer negligence in the circumstances against either of the defendants. I say that subject to this reservation that if she was standing on the diving block leaning over as far as she could without falling and simply overbalanced it would be a nice point on her case as to whether the defendants might still be liable for negligence, in not putting up a sign warning against this sort of behaviour on the same basis as it was alleged warning should be given about diving into the shallow end of the pool or in not continuously supervising the activities of people using the pool and warning them of the danger involved in various types of observed behaviour and excluding them if they did not heed the warning.

Looking at the whole of the evidence there is no doubt that the plaintiff suffered her injury after she penetrated the water at the shallow end of the pool near its north western corner. I find that she probably did that voluntarily rather than accidentally and that she probably dived into the water rather than jumped into it. The matter for determination then is whether I ought infer that it is more probable that she dived in from a diving block at its shallow northern end than it is that she dived in from the side of the pool effecting a dive (whether running or not) in an effort to cut the corner.

I have indicated I derive no assistance from the evidence of either the plaintiff or her sister as to anything either of them said they observed at the material time which would lend more support to one inference than the other because I do not regard their evidence as at all reliable.

The first of the first defendants gave evidence that he had "chipped" children including the plaintiff for both running on the pool surrounds and "cutting the corners". He said that when he did so they stopped. He said he had previously warned other children including Nathan Walsh not to run around the pool and cut corners and indeed had barred some of them for disregarding such directions. He said a few days before the plaintiff's injury, perhaps a week, he had observed her run across the concrete towards toilets He had told her to stop running, she then slipped and fell against the toilet wall.

Indeed on the day of the accident he observed children including the plaintiff running on the pool surrounds "cutting corners and went out to the pool and told them to stop". He said there were "a lot of other children" there and he named a couple and he recalled that the plaintiff was one of them. I do not find it improbable that he would recall the plaintiff, having regard to her size. She was 6 feet tall and weighed about 75 or 80 kilograms. The evidence discloses that she must have been the oldest of the children and I assume the biggest one attending the pool on the day of her injury. He said that when he "chipped them", they all stopped running.

He said that he was unaware that the children continued to cut the corners or to run on the concrete between the time he warned them to stop doing that and the time he learnt of the plaintiff's injury. He said he certainly walked outside along the pool with Rosie Jones and there were no children cutting the corners or running around the pool at that time. Indeed he and Rosie Jones together saw the plaintiff and her sister on the western side of the pool. He said he saw the plaintiff lying on her back in the water with her head near the edge of the pool with her sister, Georgina, standing beside her. He had a discussion with his sister-in-law Rosie Jones about the two girls who were relative newcomers to Surat township. He then walked back to the kiosk and about 10 or 15 minutes later he said the plaintiff's sister came running towards the kiosk screaming. He said that in the 10 or 15 minutes that passed between seeing the plaintiff and her sister on the western side of the pool and the time when the plaintiff's sister came seeking help, he did not notice any children running around the pool or on the cement surrounds of the pool or playing cut the corner. He said that as soon as the plaintiff's sister informed him and his brother-in-law, Shane Jones, who was in the kiosk area with him, of the plaintiff's injury, he and Jones ran towards the shallow end of the pool. Jones got about half way across the northern end and then jumped into the water; Mr Horrobin shortly afterwards left him there and went to contact the ambulance. After taking steps to have the ambulance contacted he went back to the pool to see Mr Jones holding the plaintiff and attempting to give her mouth to mouth resuscitation unsuccessfully while she was in the water. The plaintiff was then lifted out of the pool and given mouth to mouth resuscitation at the pool side. Mr Horrobin said that when he first saw the plaintiff in the pool he believed that Bernadette Osborne was with her, although he was uncertain of that because of the shock that he no doubt suffered as a consequence of what had happened. He said however that he observed that the plaintiff's head was facing towards the shallow end of the pool. She was lying parallel with the western side of the pool and he thought she was being held by Bernadette Osborne who was supporting her somewhere between the waist and shoulders. His recollection was that Bernadette Osborne helped him and Shane Jones get the plaintiff out of the pool. Mr Horrobin said that while the pool was open he constantly kept watch for dangerous activities on the part of children because they sometimes acted dangerously. If he became aware that they were acting dangerously he would go to the pool and tell them to stop. Generally if he became aware that they were running or racing on the cement he would go out and tell them to stop. Sometimes he might have to do this once or twice a week. He said the two dangerous "games" which he prohibited specifically were running on the cement and cutting the corners. As soon as he saw either game in progress he would take immediate steps to stop it. He said that he thought that the game cutting the corner was dangerous because "Well if you dive in and hit the side of the pool". He said that on three or four occasions over a couple of weeks before the accident he had reprimanded the plaintiff specifically for running around the swimming pool and cutting the corners with other children in the pool. He said he could not recall precisely when those occasions were but they were in addition to the occasion when she slipped and collided with the toilet wall a couple of days before the accident itself and on the day of the accident when he told her and the other children to stop cutting corners. He observed with respect not merely to the plaintiff but to others in the group of children who regularly attended the pool -

"Well they were all the same. If they thought I wasn't looking they would start running around the pool or running on the cement."

He said it might have been about 4 pm on the day of the plaintiff's injury that he had specifically told the plaintiff and other children to stop playing the game "cutting the corners". He said that he could recall that a couple of boys and two or three girls were playing "cut the corner" at that time - including the plaintiff.

He said that he just did not know whether the game "cut the corner" was in progress at the time the plaintiff was injured. He said that he had not noticed the children playing the game "cut the corner" or running around the pool immediately prior to seeing the injured plaintiff in the water. Indeed, he said that in the ten minutes that he had been standing talking to Mr Jones in the kiosk area after walking along the pool with Rosie Jones he had not seen any running. He said that if there had been running going on he would have seen it if children had run past him. This evidence must be viewed in the context of other evidence which shows that visibility of the shallow end of the pool was obstructed to the knowledge of the children although apparently there was a mirror installed which permitted a degree of supervision of the shallow end from within the kiosk area.

He denied telling Lorraine Allwood on the night of the accident that he had told the children including the plaintiff to stop running around the pool and cutting corners but that they had started doing so again and that was when the plaintiff was injured. I am satisfied having considered the evidence given by Lorraine Allwood that indeed Mr Horrobin did say that. I think it is most likely that he believed that that was what had happened although as I have indicated, I am unpersuaded in the light of his evidence that he actually saw them running or playing "cut the corner" at the time the plaintiff was injured. In the circumstances, one can understand his assumption having regard to the condition of the injured plaintiff and the fact that she was found floating in a corner of the pool in that condition. He said in cross examination that he looked towards the pool every couple of minutes and that to his knowledge the game had not resumed and was not in progress immediately prior to the plaintiff's injury. This evidence is in conflict with the evidence of the three boys, two of whom said that they were in fact playing the game at the time the plaintiff was injured - whether or not the plaintiff was playing that game in their group. It is also in conflict with the evidence of Bernadette Osborne as to the continuation of the game after the warning had been given until the players tired of it. Unsurprisingly, Mr Horrobin was unable to deny that there was a game in progress, when the plaintiff was injured. He was also unable to deny that the plaintiff may have attempted to "cut the corner" whether or not at that time she was participating in a game with any other child or children. He did say however that he had seen the game being played by children on many occasions previously and that when he did see it in progress he prohibited the children from continuing with that game. He said that some of the children "dived shorter and some dived longer across the corner". He said normally there was yelling and cooee-ing going on when the game was being played. This would attract his attention to it and he would go out and stop them playing that game. He said it was a popular game at the pool and that when there were enough children there they played it "whenever they thought they could get away with it". The ages of the children playing the game were from 8 to 17 or 18 years.

He said that when he first saw the injured plaintiff in the water she was in the north western corner "near the ladder'. She was floating face up in the pool being supported by Bernadette Osborne. He said the closest diving block to her was Block No. 6 but she was closer to the western edge of the pool than was Block No. 6. He said that from his recollection when he saw her she had her arm on the steps at the western edge and her head was near the steps. Mr Jones was called by the first defendants to give evidence. He said that prior to the plaintiff's injury he had not that day observed any game of "cut the corner" being played although he was standing in the kiosk area talking to Mr Horrobin. He said that he did not at any time hear screaming from the plaintiff's sister or from anybody else. He said that he saw Georgina come into view around the side of the male toilet block and she informed him and Mr Horrobin "my sister's in trouble in the pool"; he asked what had happened and the child said she did not know. He said that he jogged over to the area with Mr Horrobin and saw the plaintiff in the shallow end of the pool on the western side being supported by Bernadette Osborne. When he saw her she was lying on her back with her head "fixed to one side". Her head was the closest part of her body to the northern end of the pool. He said that she was about two metres out from the shallow end of the pool with the diving blocks on it and about one and a half metres from the western side of the pool. He asked Bernadette Osborne what had happened to the plaintiff and she said she did not know. He then took hold of the plaintiff and assisted to get her to the side of the pool. He said that he observed Mr Quinn standing outside the pool fence on his side of it while he was waiting for the ambulance and giving the plaintiff mouth to mouth resuscitation. He said he happened simply to look up and noticed him standing at the fence.

He said that while he had been standing talking to Mr Horrobin he "might have heard kids playing" but that he did not hear any screaming of the sort that might suggest anybody was in trouble.

He said that when he got into the north western corner of the pool he found the plaintiff close to "the ladder" which he described as "the recessed steps". He said that the plaintiff's head was about level with those recessed steps.

It is clear from the evidence of Mr Jones that he also had used the swimming pool over the 25 years or so that it had been in operation and that he used to play the game "cut the corner" with other children in the pool during his adolescence.

Of all the estimates as to the location of the plaintiff in the pool at the material time, I treat the evidence of Mr Jones as probably the most reliable. It is clear of course that when he saw her the plaintiff was being supported by Bernadette Osborne. However unless she had been shifted an appreciable distance it seems likely that she suffered her injury in the vicinity of the north western corner of the Surat Pool. Of course whether she was moved to any degree by her sister within the water after she came to the surface after injuring herself is a matter for some conjecture. To the extent that she was moved one might think that it would be natural to move her towards the recessed steps. However there was no suggestion that from the time Mr Jones and Mr Horrobin first saw the plaintiff being supported in the water by Bernadette Osborne she was moved at all before Mr Jones reached her. I am unpersuaded that the evidence of the plaintiff's sister as to her moving the plaintiff or as to the extent to which she moved her if she did after her injury is reliable.

Looking at the evidence of Mr Hall the diving expert and the medical evidence as to the nature of the force necessary to produce the injury to the plaintiff's cervical spine in my view the position where the plaintiff was observed to be in the north-west corner of the pool and the direction in which her head was pointing shortly after her injury tends to support the inference that she was cutting the corner rather than that she dived in off a diving block towards the centre of the northern end of the pool in a vertical fashion.

If she had dived in off a diving block in a vertical fashion and assuming that for some reason or in some way in the second or less that passed from her entry into the water with her hands in front of her to impact with the pool floor, her head came into contact with the floor, she would have been very close to the bottom of the wall of the pool when she suffered her injury. In that situation even if when she reached the surface of the pool her head was pointing towards the wall, one would think it would be within half a metre or a metre of it. One would not expect that she would be propelled some metres away from the wall towards the deep end of the pool. Action and reaction being equal and opposite one would expect the reaction after impact of the plaintiff's head on the pool floor after a vertical dive would tend to cause her body to rise to the surface directly rather than to rise in such a way that when she came to the surface her head would be several metres to the south of its point of impact with the pool floor with the rest of her body to the south of her head.

On the other hand if she was cutting the corner when her head came into contact with the northern wall of the pool upon impact, her body would tend to be directed away from point of impact in roughly the opposite direction from that in which it had been travelling immediately before impact. The probable point of impact involved in cutting the corner would be between the plaintiff's head and the end wall perhaps some little distance below the surface of the water. I say this because if she dived steeply into the water and hit the pool floor the resulting impact would more likely cause a hyper flexion injury as a consequence of her forehead coming into contact with the floor of the pool because of the angle of approach.

I take the view therefore that the position where the plaintiff's body was found, her head a couple of metres from the wall at the northern end of the pool and a metre and a half or so from the western wall is a circumstance which supports the inference that she was cutting the north western corner when she sustained her cervical injury. In my view it militates against drawing an inference that she sustained her injury when she performed a vertical dive off either a diving block or off the edge of the pool at its northern and shallow end.

According to Mrs Jones, she and Mr Horrobin had walked along the edge of the pool in which the plaintiff was injured minutes before she first learnt of the plaintiff's injury. It was in the course of that walk that she observed the plaintiff and her sister in the pool. She said that it might have been only four minutes later or perhaps ten minutes later, that the plaintiff's sister informed the group of which she was one that the plaintiff was in trouble. She said that when she had previously walked near the pool with Mr Horrobin and observed the plaintiff and her sister she did not see any children running around the pool. She said the plaintiff and her sister were the only two people that she observed in the pool. Mrs Jones had poor eyesight at the time which later was corrected by glasses. Making all due allowance however for problems she may have had, with her vision it seems that she saw no children running around the pool cutting corners when she and Mr Horrobin walked along the pool edge shortly prior to the time of the plaintiff's injury. I do not find this at all surprising because the evidence generally is to the effect that the children were aware that running or cutting the corner was forbidden and I would think that they would not attempt to do that when Mr Horrobin was actually walking along the pool edge. I do not believe that Mrs Jones would have had any reason to take much notice of how many children were around the pool or what they were doing at the time she was walking along its edge with Mr Horrobin. I am unpersuaded to reject the evidence of Bernadette Osborne and the three boys, all of whom said that they were in or about the pool prior to and at the time of the plaintiff's injury. I do however give weight to the evidence of Mrs Jones and Mr Horrobin that between five and ten minutes prior to the plaintiff's injury there was a period of time when he and Mrs Jones were walking along the edge of the pool during which no child was running along the concrete or playing "cut the corner".

With reference to the statement allegedly made by the first of the first defendants to Mrs Allwood, as I have indicated, I am persuaded on the probabilities that he probably did make that statement to her. I am persuaded that he was aware that the children on the afternoon in question were playing "cut the corner" - indeed he had told them to stop running and playing that game. Although he said in evidence that he was aware that there was a danger of their injury should children come into contact with the wall as they cut the corner, the evidence does not persuade me that he did specifically direct their attention to this aspect of the danger in the warnings he gave on the day of the plaintiff's injury. He certainly directed it to the danger generated in playing the game which of course also involved running along the side or end of the pool before diving in across the corner.

I am persuaded on the probabilities that the first of the first defendants did believe that the plaintiff had injured herself while playing the game "cut the corner". However I am unpersuaded that he had any knowledge from his own observation that the plaintiff suffered that injury as she was playing that game. The game had obviously been played regularly during the period that the first defendants had managed the pool as it had been for decades. The first of the first defendants had regularly told children not to play that game and obviously was aware that from time to time they did play the game when they thought they could get away with doing so. I think it more than likely having regard to the position in which the plaintiff was found and the direction in which her head was pointing and particularly in the context of her having been warned to stop playing it earlier in the afternoon that he inferred that she had been playing it when she was injured. In my view however the reliability of this statement as evidence that in fact she was doing that when she injured herself is insufficient to attach any significance to it having regard to s.102 of the Evidence Act in determining precisely how the plaintiff penetrated the water at the time she suffered her injury. On the other hand it is evidence of his knowledge that the plaintiff and other children did play that game when he was not at the pool side or distracted from his "eyes-on" supervision of the pool.

I find it difficult to determine on the state of the evidence whether the plaintiff was simply diving into the pool either off its edge or off a diving block at its northern end or cutting the corner when she injured herself.

In my view little assistance in resolving this issue is to be derived from an examination of the medical evidence or the evidence of the diving expert Mr Hall.

All that expert evidence seems to me equally consistent with the plaintiff sustaining her cervical spinal injury either in the course of cutting the corner and striking her head on the pool wall or in the course of diving or inadvertently falling off a diving block or the edge of the pool and striking her head on its bottom after a vertical penetration of the water.

This case in my view must be decided as a circumstantial one. The real question to be determined is what weight, if any, should be given to the circumstances that children of which the plaintiff was one, were in the habit of playing cut the corner and indeed had played cut the corner on the afternoon of her injury both before and after they had been warned by the first of the first defendants to stop playing that game. The evidence of Dingle, Mundy and Walsh, although not sufficiently reliable to accept as direct evidence as to how the plaintiff penetrated the water leading to her injury, is I find acceptable to show that at about the time of her injury or at least very shortly before it there was a game of "cut the corner" in progress albeit that neither the plaintiff nor her sister nor Bernadette Osborne were observed to be participants in it. They had of course been participants in such a game or games earlier in the afternoon.

The real question is whether those are circumstances which in the light of the expert medical evidence and evidence from the diving instructor is sufficient to support an inference that she was more probably cutting the corner at the time of her injury than having dived or fell in a vertical fashion into the pool from a diving block or its edge.

On one view, the question is whether or not the evidence of the participation by the plaintiff and Bernadette Osborne and her sister earlier in the afternoon in cutting the corner is merely similar fact evidence and inadmissible on the issue as to which of the two explanations for the plaintiff's injury is the more probable. In Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, consideration was given to the use of similar fact evidence illustrating the propensity or disposition of an accused person to commit an offence. The principles there considered at some length are not directly applicable to the problem before me. Nevertheless some guidance may be obtained from general statements of principle as to the basis for the admission of similar fact evidence. At p. 482 in the judgment of Mason CJ, Deane J and Dawson J, observations in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 at p. 294 were cited with approval -

"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its admissibility is the strength of its probative force -- That strength lies in the fact that the evidence reveals 'striking similarities ', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution."

"On the other hand, evidence of a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it will have greater cogency, so long as it has some specific connexion with or relation to the issues for decision in the subject case. That evidence, as has been said, will be admissible only if its probative value exceeds its prejudicial effect. But that statement, it seems to us, is of little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused."

I refer also to the rules relating to admissibility of evidence of habit to prove what a plaintiff was probably doing at the time of injury in the absence of other satisfactory direct evidence; see Lahrs v Eichsteadt [1961] Qd.R. 457 and R v Murphy (1985) 4 NSWLR 42 at

I refer also to Joy v Phillips, Mills & Co Ltd (1916) 1 KB 849 at 854 as to the admissibility of "the habits and ordinary doings" of the deceased in that case as circumstantial evidence from which the cause of his death might be inferred.

The expert medical evidence and the expert evidence of the diving instructor in my view being equivocal, I am persuaded principally upon the weight of circumstantial evidence as to the plaintiff and her sister previously playing the "cut the corner" game, as to the probable manner of the plaintiff's entry into the pool water preceding her injury. I attach some weight to the fact that the plaintiff who was completely untrained in diving had never previously even touched the bottom of the pool when she dived in at the shallow end and infer that she was one of the 65% to 70% of untrained people who according to the diving instructor, hold their head up when diving and so do not effect a vertical dive. The most probable explanation for her cervical spinal injury is that she sustained it when she dived across the north-western corner of the pool from its western side bringing her head into contact with the wall at the northern end of the pool.

Shirt (supra), Nagle (supra) and Pennington (supra) were all cases where the plaintiff suffered injury upon entering water at a point where it was dangerous to do so, to the knowledge of persons managing or controlling use of the water although that danger was not apparent to the person entering it.

Those cases dealt with the obligation on such managers etc. of the water facility to warn people of the danger involved in entering the water without extreme caution in the vicinity of where the danger lurked.

The primary case of the plaintiff here was that she dived off the diving block at the shallow end being well aware of the depth of the water into which she dived but due to lack of experience in such matters she was unaware that she was subjecting herself to danger of injury because being six feet tall and 75 to 80 kilograms in weight should she dive vertically into the water 3' 6" deep her head would or might come into contact with the pool floor. Her primary case of negligence against the first defendants and the second defendant was that she ought to have been warned that it was dangerous to dive vertically off the diving block into the pool at its shallow end. On her behalf reference was made to the observations of Mahoney JA in Pennington (1993) Aust. Torts Reports 62397 at 62400 and 62401. His Honour there referred to the evidence from which it might be inferred that the plaintiff in that case "did not fully appreciate that danger" of diving into the pool where he did because he thought that the depth of the pool was 5 feet although it was only 4' 6". Essentially the inference drawn was that he simply did not appreciate that he was putting himself in danger by diving into water that was approximately 5 feet deep. His Honour proceeded:

"Therefore, if the defendants were in default, in a way which actually brought about the plaintiff's injury, prima facie that default had to go beyond bringing to his attention the danger of diving in too shallow water or the fact that the water was only about five feet deep or thereabouts. Those facts he knew. What, then, was the relevant default?

It must, in my opinion, have been that the defendants did not bring the danger and the depth to the plaintiff's immediate attention, so that he was subjectively aware or conscious of it when he decided to dive where he did. The significance of the absence of signs warning of the danger of diving and of depth indicators was essentially that it resulted in the plaintiff not being then warned and subjectively aware of the danger he was taking.

Does the law extend so far as to require the defendants to do that which is apt to bring to the plaintiff's immediate attention the necessity to ensure that the water is sufficiently deep and the depth of the water at that point? With some hesitation, I accept that, in this case, it did."

"The Council had set up and the personal defendants were conducting a place to which people were invited to come and where people would be apt to dive. --

There was a plain risk that persons might act inadvertently and without sufficient care. The law -- recognises the duty, in some cases, to provide against inadvertence.

In my opinion, this was such a case. The danger from diving into shallow water is well recognised: it is the kind of thing of which a public pool owner must be conscious. The damage apt to result from the danger, if it eventuates, is apt to be very great: it is well known as a source of paraplegia or quadriplegia. The precautions which may be taken are simple and involve no great cost: warning signs and depth markings will often be sufficient. In these circumstances, the response of a reasonable person who has set up or conducts a pool facility would, in my opinion, be to guard against the risk of inadvertence in this way."

Clarke JA at pp. 62403-4 concluded that on the facts of the case, Nagle was authority for the proposition that there was a foreseeable risk of injury should a patron of the diving pool in question dive into water which was too shallow and that Council had failed in its obligation to guard against the risk of such an injury because it had failed to place signs near shallow parts of the pool that the water was too shallow to dive into. At 62404 he observed applying Nagle -

"In these circumstances a finding of liability against an occupier who has not placed the particular signs suggested by experts would, in accordance with the present law, almost automatically, flow from the happening of the foreseeable incident leading to injury."

At p. 62409 Meagher JA having referred to the evidence generally and the decisions in Shirt and Nagle observed -

"Clearly enough the defendants could have guarded against the risk (minimal as it was) by erecting the signs suggested, and that, his Honour found, on the plaintiff's evidence would have averted the accident."

Towards the end of his judgment Meagher JA referred to submissions made on behalf of the appellants that having regard to the decisions in Shirt and Nagle -

"The law of negligence has travelled such a long way that it has imposed the duties of an insurer on persons in the position of the appellants (i.e. the owner and manager of the pool), given that there was nothing unusual in Mr Pennington's conduct in using, or that of the appellants in respectively providing, and supervising the operation of the pool; there was no hidden danger; there was no allurement; there was no problem of the type arising in respect of bathing in the sea, or in sea pools, or in water holes, or in creeks and other internal waterways."

Commenting upon those submissions his Honour continued -

"I respectfully agree. It is indeed a surprising result, but it is one an intermediate appellate court cannot remedy. It is a result which is mandated on us by the two High Court decisions to which I have referred. So long as a duty arises whenever the occurrence of the risk is not fanciful, a duty will arise in every single case. It does not follow that the defendant will be liable in every single case, but it does follow that he will be unless it can be proved that to avoid the risk will be wholly unreasonable."

In Pennington there were two findings of negligence about which the defendants complained - the first was failure to warn of the precise depth of the pool where the plaintiff suffered injury when he dived into it and the second was failure to put up a sign indicating that it was dangerous to dive there.

Having regard to the conclusion I have reached that the plaintiff probably suffered her injury when her head came into contact with the wall at the shallow end of the pool as she cut the corner it is unnecessary for me to consider the application of Shirt, Nagle or Pennington insofar as they are authority for drawing to the attention of patrons of the Surat Pool the depth of water at the shallow end of the pool. On the facts of this case the plaintiff was well aware of that in any event. I find that part of her case based on her inability to understand depth measurements expressed in imperial terms rather than metric contrived and quite unpersuasive. However the plaintiff contends that the second aspect of Pennington relating to warnings is applicable. That is that there should have been "an immediate warning" - perhaps by signs or perhaps by the first defendants being constantly on supervisory duty at the poolside to give an immediate warning to people using the pool should they be observed to embark on that course, that it was dangerous to cut the corner - i.e. to dive across the corner.

The evidence is that patrons of the Surat Pool had been playing the game "cut the corner" for very many years. Both Mr Jones and the first of the first defendants had used the pool in their adolescence many years ago and even at that time it was a commonly played and very popular game. It is clear that prior to the plaintiff's injury it had been played regularly by children at the pool. It is also clear that the first defendants at any rate recognised that people playing this game were running a risk of injury should in cutting the corner their head come into contact with the wall at the side or end of the pool. It was for this very reason according to the first of the first defendants that he forbade the playing of the game and whenever he observed children playing the game he told them to stop. Indeed if they continued to play it apparently they ran the risk of being excluded from the pool.

I am satisfied that on the day the plaintiff suffered her injury she had been playing that game. I am satisfied that she and other children had then been warned by the first of the first defendants to stop playing the game. I am satisfied that she and other children when the first defendant went back into the kiosk after warning them and telling them to stop again commenced to play the game.

It is probable in my view that if the first defendant had stayed in the vicinity of the pool at all times and observed any children diving across the corner of the pool, in the fashion in which I am persuaded the plaintiff was diving when she hurt herself, in spite of his presence, he may well have had the opportunity to shout out as they prepared to make the dangerous dive, telling them not to and threatening to expel them if they did.

If he had been in constant attendance at the pool side the probability is that the younger children certainly would not have attempted to cut the corner - particularly if they knew that they would be expelled from the pool if the first defendants observed them doing or attempting to do so. This would be so whether or not they were participating in a game of "cut the corner" - if for example they were simply practising the game so that they might more effectively play it if and when the manager of the pool for some reason was not present.

In my view the first defendants faced a difficult management task. One consideration is whether in view of such a long standing and potentially dangerous game there ought to have been signs erected forbidding it. It is contended for the plaintiff that the erection of such signs may have brought to the "immediate attention" of children what must have been an obvious danger even to young children of injury should they dive towards the wall of the pool in the course of cutting the corner (in "kamikaze" mode to use Dr Hill's expression) or even should they jump into the pool and bring their legs or lower part of their body into contact with the wall.

Undoubtedly there were all sorts of other dangerous activities in which children might engage when playing games in a group around the pool. One might think that young children who could not swim ought be warned not to dive or jump into the pool at a place where the depth of the water exceeded their height; to do so would seem to put them at risk of drowning just as to dive into the pool vertically where the depth of water was less than their height would put them at risk of injury of the sort sustained by the plaintiff. Similarly it might be contended that signs ought be erected exhorting persons not to dive or jump onto somebody in the pool or to swim into the pool walls. They might be exhorted not to push people into the pool or to run around the edge of the pool - particularly when it was wet.

There seem to be all sorts of potentially dangerous activities in which children or adults might participate when playing as a group in and around a public swimming pool - particularly when they are acquainted with each other and regularly attend such a facility - which arguably should be brought to their "immediate attention" either by having somebody constantly supervising them - perhaps as school teachers apparently supervise school children when they take a class to the pool for swimming tuition and recreation or perhaps by having a smorgasbord of signs listing all the activities which are obviously dangerous upon reflection and prohibiting or warning against engaging in those activities so that these warnings may be brought to the "immediate attention" of children or adults who might otherwise engage in them.

Such an approach would extend the duty of pool providers and supervisors even beyond the boundaries reached, for example in Pennington and Nagle.

The plaintiff in this case said that had there been a sign up saying it was dangerous to dive into the shallow end of the swimming pool off the diving blocks she would not have done so. This evidence was led undoubtedly to provide a basis for finding that the presence of such a sign would have averted her injury - as was found by the trial judge in Pennington. I will assume that had she been asked she would have said that she would not have cut the corner had a sign been erected bringing to her immediate attention that it was dangerous to do so. Of course such a question would have been treated as hypothetical only in light of her denial that she was diving across the corner.

On the facts of this case it is absolutely clear on the evidence which I accept that all the children attending the pool on the afternoon of the plaintiff's injury were well aware that they were forbidden to run around the edge of the pool or to cut the corners. Indeed they had been told to stop engaging in those very activities only an hour or so before the plaintiff's injury. It is clear that having been given the warning, as soon as the first defendant turned his back to go into the kiosk area they recommenced and continued to play those games until as Bernadette Osborne observed they "got tired of it".

I am simply unpersuaded that the erection of signs around the swimming pool prohibiting playing the game of "cut the corner" would have been any more effective to dissuade children from diving across the corners of the pool than had been the constant prohibition of that game whenever the first defendant became aware that it was being played. It is clear from the evidence of the children that they would play the game when they thought they could get away with it in the absence of the first of the first defendants from the immediate environs of the pool.

I am quite unpersuaded that the failure of either the second defendant or the first defendants to erect signs within the pool area prohibiting the playing of the game "cut the corner" or warning against the obvious danger involved in diving across pool corners was a cause of the plaintiff's injury. If such a sign had been erected in my view the likelihood is that the children would simply have ignored it and continued to play that game unless and until the first of the first defendants came out into the pool area and told them to stop or be excluded from the pool. In fact it is clear that this was the ultimate sanction against playing the game and it was imposed from time to time on children who persistently and I infer sometimes insolently refused to comply with the direction of the first defendant to not play the game.

Should then the first defendants have appreciated that the children (including the plaintiff) attending the pool at the time of the plaintiff's injury would continue to "cut the corner" if they thought that they could get away with doing so and have adopted a system which involved one of them being in the pool environs constantly to supervise the children while they were there and to more rigorously impose the rule against cutting the corner by shouting at those children who indicated that they intended to or might do so; if necessary by excluding them for some period of time if they disobeyed directions not to do so. Mr Quinn, who took over from the first defendants as pool manager says that he succeeded in enforcing prohibition of the game and some of the children gave evidence to the effect that after the plaintiff's injury the game was not played. It is more than likely that the plaintiff's injury illustrated more effectively the dangers involved in the game than all the "traditional" warnings and directions which had failed to prevent the children from playing it "when they could get away with it.".

The first thing to say about such a contention is that it was not clearly raised in the pleadings. Indeed as indicated, the plaintiff's case was conducted on the basis that she dived off the diving block into the shallow end of the pool. She only sought to rely upon an absence of proper supervision and signs warning against cutting the corners in the event that it was found that she had in fact suffered injury while attempting to dive across the north western corner of the pool.

I conclude upon the whole of the evidence that in fact the first of the first defendants did not continuously supervise the children playing in the pool on 17 December 1991 between the time he warned the plaintiff and other children (including Bernadette Osborne) to stop playing that game and the time of the plaintiff's injury. As already indicated, I am persuaded that the children did stop when they were told to but upon the first of the first defendants returning to the kiosk recommenced to play the game for some time afterwards without the first of the first defendants again coming out and directing them once more to stop playing it because it was dangerous. I am satisfied on the material that probably a couple of the children - Mundy and Walsh in particular - were after a fashion still playing such a game at the time when the plaintiff suffered her injury. I accept the evidence of the children generally as to the persistence of the game and the fact that some of them were playing it - even in a half hearted fashion and not in the noisy, boisterous way in which they sometimes played it - for some time before and more or less at the time of the plaintiff's injury. I infer that the game was much more subdued then than it had been when the noise it was generating had earlier in the afternoon attracted the attention of the first of the first defendants and he went out to the pool and told them to stop. I am unpersuaded however on the probabilities that either the plaintiff or her sister or Bernadette Osborne were members of a group of children playing the game at the time the plaintiff suffered her injury.

Had the first of the first defendants been out of the kiosk supervising generally the pool and had he observed the plaintiff take a few steps and execute a "running dive" across the north western corner of the pool at a time when she was not being chased by or actually chasing children, it is far from clear to me that he could have done much which would have prevented the plaintiff from doing what caused her injury and I doubt very much whether supervision would have in any way inhibited that activity; perhaps however his actual presence beside the pool would have discouraged it. Indeed on the assumption that the plaintiff was not actually chasing or being chased by somebody in the course of a game of "cut the corner" - and that generally is the evidence of the children who were at the pool at the time - there would seem to be little basis or reason for the first defendant to have done or said anything even if he observed the plaintiff dive across the corner - particularly if her observed behaviour gave little timely warning that she proposed to do so; perhaps if her intention to do so was indicated by the manner in which she approached the edge of the pool and her intention to dive across the corner with a "short dive" rather than a "long dive" had been observed by the first defendant who had time to direct her not to do it by shouting, the plaintiff may have heeded such a direction and not executed the dangerous dive. On the other hand if the first of the first defendants had been at the poolside and there was no boisterous and excited group of children playing or attempting to play the game "cut the corner" he may have been more inclined to supervise the young children at the deep end of the pool rather than the activities of the plaintiff, who was almost adult at that time, approaching or near the shallow end.

I am unpersuaded that any negligence causing the plaintiff's injury has been established against either of the defendants in failing to erect signs around the pool proscribing "cutting the corner" because it was dangerous to do so.

The last question to be determined is whether the first defendant was guilty of negligence in failing to provide continuous supervision of the sort that may have dissuaded the plaintiff from attempting to "cut the corner" by diving from the western edge of the pool towards its northern wall a couple of metres away; which obviously was a dangerous thing to do. There is an absence of any evidence that had there been constant supervision at the pool at the time she executed this manoeuvre any timely warning or direction could have been given which may have prevented her from diving across the corner and sustaining the injury which she did. In any event in neither her pleadings nor the evidence she led did she pursue such a case and the feasibility of conducting the Surat Swimming Pool in such a way that one of the first defendants was continuously at or near the pool side to ensure that the rules so well known to all children were obeyed was never investigated.

The disposition of the plaintiff and other children attending the pool to disobey the well known rule against cutting the corner when they could get away with it was well known to the first defendants who were also well aware that serious injury might be sustained if a child (or adult) dived into a wall in the course of doing so. Were then the first defendants under a duty to provide continuous supervision in an effort to prevent disobedient children (of whatever age) from injuring themselves in the course of obviously dangerous diving practices which they knew to be prohibited and might (or would) lead to their exclusion from the pool in some circumstances if observed by the people supervising the pool?

I hold that the injury suffered by the plaintiff was one the risk of which was reasonably foreseeable in the event that she engaged in "cutting the corner" either alone or with other patrons of the pool - whether children or adults.

It is clear that under the "Agreement for Lease" which is Ex. 89 the first defendants were obliged to make the pool facilities available to members of the public upon payment of the authorised entry fee and to supervise the use of the pool for the purpose inter alia of preventing or at lest avoiding to the extent reasonably possible, the risk of injury to its patrons while they were using it.

It is clear on the evidence that when children during school hours attended the pool they were supervised by a teacher - presumably to control dangerous activity which might be anticipated to result from their youthful exuberance and perhaps tendency to recklessness in the company of their peers.

The common law duty upon school authorities and/or teachers to supervise schoolyards with a view to the prevention of injury to children using them was considered in Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258. In that case the plaintiff was injured as a result of inadequate supervision at a time when he and other schoolchildren were engaged in dangerous activities awaiting commencement of school instruction. At p. 271 Mason J adopted the view expressed by Kitto J in Ramsay v Larsen [1964] HCA 40; (1964) 111 CLR 16 at p. 28 and held that the Commonwealth by "establishing" a school which was "maintained on its behalf by New South Wales" at which parents could enrol their children for instruction assumed a personal duty of care for the children attending the school. He said:

"The nature and scope of that duty of care was co-extensive with the duty of care owed by any authority or body conducting a school to pupils attending the school. It was a duty to ensure that reasonable care was taken for the safety of the pupil which was breached in the circumstances of this case"

inter alia by failing to provide adequate supervision to prevent the activity which led to his injury.

"It was, as I see it, a duty directly owed by the Commonwealth for breach of which it is liable. It was not a case of vicarious liability for the omissions of the acting principal and the members of his staff, though had it been necessary to do so, the Commonwealth might have been found liable on this score.

The fact that the Commonwealth delegated the teaching function to the State -- does not affect its liability for breach of duty. Neither the duty, nor its performance, is capable of delegation. It is not enough for the Commonwealth, in providing a school, to leave it to the State to take care for the safety of the children attending the school. Nor does it matter that the Commonwealth does not control and cannot direct the teaching staff in the performance of its duties. -- The issue is whether the Commonwealth is liable as a school authority when it establishes the school and arranges with the State to run the school on its behalf. In my opinion, the Commonwealth does not cease to be liable because it arranges for the State to run the school on its behalf."

"The Commonwealth had undertaken a governmental function for the conduct of which it was responsible, whether it employed its own teachers or arranged for teachers to be made available to it by a State. The Commonwealth is therefore as liable for the acts and omissions of its borrowed staff as it would have been for staff directly employed by it as teachers in schools established by it."

Adopting the approach taken in Introvigne's case I conclude that the Surat Swimming Pool was owned maintained and provided by the second defendant for public use. The arrangement between the second defendant and the first defendants was designed merely to provide, mostly at Council expense, somebody to clean and service daily the pool facilities, admit members of the public to use them and to supervise their use with a view to preventing as far as reasonably possible, activities which might cause injury to the patrons.

I would adopt the approach adopted in Introvigne's case on the facts of this one and hold that both the first defendants and the second defendant were equally under an obligation to provide reasonably adequate supervision during the hours of pool operation, inter alia, with a view to preventing persons diving across the corners of the pool and thus subjecting themselves to foreseeable risk of injury of the sort in fact sustained by the plaintiff.

The difficult question is whether on the facts of this case reasonable supervision involved continuous supervision which involved one of the first defendants when possible being at the poolside so as to inhibit an activity which was known to be one both dangerous to the persons engaging in it and of a kind in which they would engage if they had the opportunity to do so in disobedience of well known rules forbidding it.

In essence the question is whether the sort of duty of supervision of boisterous over exuberant and disobedient children in a schoolyard to control dangerous activity in which they tend to engage when acting as a group, should be translated into a duty of supervision imposed upon the provider and supervisor of a public swimming pool where children of the same age and disposition regularly congregate often without parental supervision for essentially recreational and unstructured activities in and at the pool.

On one view the duty imposed upon a headmaster or school authority is comparable with that borne by "a reasonable parent". See the observations of Lord Esher in Williams v Eady (1893) 10 TLR 41 at 42. On the other hand in Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91 the High Court preferred the basis for the rule given by Winneke CJ in Richards v Victoria [1969] VR 136 at 138-139 where the learned Chief Justice said :

"The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury".

The duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect (the pupil) against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen."

In Geyer v Downs supra, at 102 Murphy and Aickin JJ observed:

"An examination of the many cases on this topic which have been reported both in Australia and in England show that plaintiffs have often failed because they have been unable to prove that the exercise of an appropriate degree of supervision would have prevented the particular injury in question, notwithstanding that no supervision at all was attempted in the particular case".

On the facts of that case the plaintiff had been injured as a consequence of a breach of one of the rules of the school which had been disobeyed and resulted in the plaintiff's injury. Murphy and Aicken JJ at p. 104 observed:

"It was open to the jury to find that he knew that that instruction was honoured more in the breach than in the observance. The fact that the danger was appreciated was illustrated not merely by the Departmental Instructions but by the headmaster's own instruction that softball bats and like articles were to be kept locked-up and issued only upon the instruction of a teacher. It was open to the jury to conclude that the bat being used was in fact a school bat obtained by one of the girls notwithstanding the general rule about safe keeping. If they did so conclude then to that extent the precautions were ineffective on that occasion... The jury were entitled to regard the lack of supervision as a failure to exercise reasonable care in the circumstances and as causing the injury."

The evidence in the present case discloses that subsequent to the plaintiff's injury the game "cut the corner" was still forbidden and according to Mr Quinn when he took over the management of the pool some months later, he was able to prevent it from being played. Of course in a town the size of Surat where in the circumstances for whatever reason various people concluded that the plaintiff had been seriously injured cutting the corner, children may well have been more motivated to comply with rules prohibiting the playing of that game than they had been before the plaintiff's unfortunate injury occurred.

(1) Having regard to the knowledge which I infer both the first defendants and the second defendant had concerning the long standing habit of children attending the Surat pool to play the game "cut the corner" if they could get away with doing so were they under a duty in the circumstances to provide a continuous "eyes on" supervision of the pool while children were attending with a view to preventing them from cutting the corner?

(2) If such continuous supervision had been provided might it have prevented the plaintiff from cutting the corner on 17 December 1991 and suffering her injury as a consequence?

I find the second question more easily answered than the first. All the evidence indicates that most children attending the pool refrained from cutting the corner or running around it when the first of the first defendants was at the poolside forbidding them to continue with that activity. Perhaps some of those who insolently disobeyed the direction were those excluded from the pool from time to time. It is clear from the evidence of the first of the first defendants and from the evidence of the children that they waited "until his back was turned" and he had left the scene before they recommenced to engage in that activity. This was obviously a practice of which he was aware and I would infer of which the second defendant was or ought to have been aware.

I conclude therefore that if the first of the first defendants had been continuously supervising the pool from its side and in view of the children using it the plaintiff may not have dived across the corner and injured herself. On the other hand of course she may have. A couple of days before her injury in his presence the plaintiff had in breach of pool rules run across the pool surrounds and slipped to collide with a wall. It would have been his observed presence rather than his "supervision" which may have dissuaded her from this behaviour. I am unpersuaded that his presence probably would have prevented the plaintiff from cutting the corner; I find only that it may have.

The first question I find much more difficult to answer having regard to the way in which the case was conducted. Perhaps the formulation of the question makes the task more difficult than it need be. Whatever may have been the practicalities of continuous supervision of the pool earlier in the afternoon when the first of the first defendants was required to collect entrance charges, prepare for the barbeque to be held that evening, and sell material from the kiosk etc. there is nothing in the evidence to suggest that he could not have been at the pool side supervising pool activities at the time of the plaintiff's injury; this however was a matter not explored to any extent by the plaintiff and his attention was not directed to it in evidence. The evidence as far as it goes indicates that at that time he was simply standing inside the kiosk talking to his wife, his brother-in-law and perhaps other people inter alia about the barbeque that was to be held later that evening. As far as the evidence goes, at the time of the plaintiff's injury although there was no noisy or boisterous behaviour of children sufficient to attract attention of people in the kiosk, there seems to have been no reason why he could not have actually been in the immediate environs of the pool in such a position that his mere presence may have dissuaded children minded to do so from cutting the corner or running on the concrete pool surrounds. However for whatever the period of time which passed between the occasion when he last warned the children to stop running on the concrete and cutting the corner earlier in the afternoon and the time of the plaintiff's injury, they had on the evidence clearly recommenced to do that. There is nothing in the evidence to indicate that during the period of time they played the game until they got tired of doing so before the plaintiff's injury he had any duty to perform which would have prevented him from being present at the pool side and exercising supervision of pool use from or near its edge. The way the case was conducted this matter was not investigated.

The question therefore is whether he ought reasonably to have done so having regard to the children apparently in the pool. The age of those children apparently varied between eight years and 17_ years. He knew that they were disobedient children who would continue to run on the concrete and cut the corner "if they could get away with it" when his back was turned. Should he then have turned his back and left the poolside without compelling reason to do so on the basis that he could return once more and direct them not to play that game or engage in some other dangerous activity should something he saw or heard while inside the kiosk area indicate to him that the game or other dangerous activity was once more in progress?

In Jordan House Ltd v Menow & Honsberger (1974) 38 D.L.R. (3d) 105 the Supreme Court of Canada considered a case where hotel employees turned an intoxicated patron out of the hotel under circumstances where to the defendant's knowledge there was a probable risk of personal injury to him should he then attempt to proceed home. It was held in that case that the hotel proprietor was liable in negligence to the injured patron because the staff were under a duty to take steps either to see that he got home safely or at least that he was not turned out of the hotel until he was in a reasonably fit condition to look after himself. At p.110 Laskin J. observed:

"The common law assesses liability for negligence on the basis of breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another. This is the generality which exhibits the flexibility of the common law; but since liability is predicated upon fault, the guiding principle assumes a nexus or relationship between the injured person and the injuring person which makes it reasonable to conclude that the latter owes a duty to the former not to expose him to an unreasonable risk of harm. Moreover, in considering whether the risk of injury to which a person may be exposed is one that he should not reasonably have to run, it is relevant to relate the probability and the gravity of injury to the burden that would be imposed upon the prospective defendant in taking avoiding measures."

His Honour then pointed out that the plaintiff was a patron of the hotel, the employees of

which were aware of his intoxicated condition and the risk of personal injury if he was turned out of the hotel to travel home on foot. His Honour continued -

"There is, in my opinion, nothing unreasonable in calling upon the hotel in such circumstances to take care to see that Menow is not exposed to injury because of his intoxication. No inordinate burden would be placed upon it in obliging it to respond to Menow's need for protection. -- The evidence shows that the hotel had experience with or was sensitive to the occasional need to take care of intoxicated patrons."

In Crocker v Sundance NorthWest Resorts Ltd (1989) 51 D.L.R. (4th) 321 the Supreme

Court of Canada applied Jordan House Ltd v Menow & Honsberger in a case where the

defendant which ran a ski complex permitted an intoxicated person to engage in a race

involving the exercise of skill and co-ordination with significant risk of injury should control be lost of a rubber tube in which competitiors slid down snow slopes. The defendant's employees were aware that the plaintiff was intoxicated and suggested to him that he not participate, however they took no steps to prevent him from doing so. He was injured and the defendant was found guilty of negligence although there was a finding also of contributory negligence against the injured plaintiff.

The judgment of the court was delivered by Wilson J. At p. 325 he dealt with the

development of the duty of care at common law and said -

"The common law has generally distinguished between negligent conduct (misfeasance) and failure to take positive steps to protect others from harm (nonfeasance). The early common law was reluctant to recognise affirmative duties to act. Limited exceptions were carved out where the parties were in a special relationship (e.g., parent and child) or where the defendant had a statutory or contractual obligation to intervene. The philosophy underlying this reluctance to extend legal obligation is described in Fleming, The Law of Torts, 6th Ed. (1983), at p.137."

His Honour then reviewed observations in Linden - Canadian Tort Law, 3rd Ed.

(1982) at pp.304-5. and the principles of law dealt with in the Jordan House Ltd. case. At p.329 he observed -

"It would seem a fortiori that when a ski resort establishes a competition in a highly dangerous sport and runs the competition for profit, it owes a duty of care towards visibly intoxicated participants. -- I would conclude, therefore, that Sundance was subject to a duty to Crocker to take all reasonable steps to prevent him from entering such a competition. The question that must now be decided is whether Sundance took sufficient steps to discharge that duty."

In overruling the majority decision of the Court of Appeal, Wilson J. dealt with part of

"Crocker's conduct on the day of the race was most reckless as to his own welfare and he asks to be excused from the tragic consequences of his actions on the ground that he was inebriated. He ignores the fact that drunkenness carries with it its own hazards and asks the Court to reject any concept of individual responsibility so far as he is concerned but must apply it, none the less, to the defendant corporation".

His Honour commenting upon this approach observed -

"With all due respect to Finlayson JA., this approach is completely at odds with the thrust of the existing case law. The fact that Crocker was an irresponsible individual and was voluntarily intoxicated during the tubing competition is the very reason why Sundance was legally obliged to take all reasonable steps to prevent Crocker from competing. While it may be acceptable for a ski resort to allow or encourage sober-able bodied individuals to participate in dangerous recreational activities, it is not acceptable for the resort to open its dangerous competitions to persons who are obviously incapacitated. This is, however, what Sundance did when it allowed Crocker to compete. I conclude, therefore, that it failed to meet the standard of care in the circumstances.

These Canadian cases are authority for the proposition that persons conducting a business activity in which services are provided to another with a known incapacity are under a duty to take reasonable care in the circumstances to protect that person against risk of serious injury due to that known incapacity. In those cases the incapacity resulted from intoxication.

On the assumption that the law in Australia reflects the principles enunciated in those Canadian cases, the question on the facts of this case would be whether knowing of the propensity of the plaintiff and other children to "cut the corner" contrary to the well known rules prohibiting that activity in the absence of continuous "eyes on" supervision at the pool, the defendants were negligent in failing to ensure provision of such supervision in an effort to prevent that dangerous activity rather than a supervision which involved only going to the pool to prohibit persons then engaged in playing that game from continuing to do so when it came to attention of the supervisor some distance removed from the pool side that the game was in progress - by reason of noise, boisterous conduct or perhaps seeing children run within his unobstructed view from within the kiosk building.

The discharge of the duty of supervision owed by the defendants to the various persons attending the pool did not necessarily involve the same attention irrespective of their age. In my view the duty owed to an eight year old child with respect to supervision was not the same as that owed to a twenty eight year old adult. The duty owed to the 17 year old plaintiff in this case was not in all respects necessarily the same as that owed to children 8 or 10 years of age.

In McHale v Watson [1966] HCA 13; (1966) 115 C.L.R. 199 Kitto J. at 213 dealing with the required approach to considerations of negligence and contributory negligence on the part of children observed -

"The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard. In regard to the things which pertain to foresight and prudence - experience, understanding of causes and effects, balance of judgment, thoughtfulness - it is absurd, indeed it is a misuse of language, to speak of normality in relation to persons of all ages taken together. In those things normality is, for children, something different from what normality is for adults; the very concept of normality is a concept of rising levels until `years of discretion' are attained. The law does not arbitrarily fix upon any particular age for this purpose, and tribunals of fact may well give effect to different views as to the age at which normal adult foresight and prudence are reasonably to be expected in relation to particular sets of circumstances. But up to that stage the normal capacity to exercise those two qualities necessarily means the capacity which is normal for a child of the relevant age; and it seems to me that it would be contrary to the fundamental principle that a person is liable for harm that he causes by falling short of an objective criterion of `propriety' in his conduct - propriety, that is to say, as determined by a comparison with the standard of care reasonably to be expected in the circumstances from the normal person - to hold that where a child's liability is in question the normal person to be considered is someone other than a child of corresponding age'.

On one approach therefore in considering the duty on the defendants with respect to the plaintiff, one would take into account her size and age. Although engaging in rather childish activities with much younger children she had the build of an adult and in fact was 17 years and 4 months of age. Had it not been for the knowledge of the first of the first defendants that in fact the plaintiff was in the habit of playing "cut the corner" with other children when she and they thought that they could get away with it he may have adopted the defence that having regard to her age and maturity he was entitled to assume that she would not attempt to do what she must have been doing when she was injured and therefore that it was unnecessary for him to maintain a continuous "eyes on" supervision of her when she was in or around the pool area. However with his experience of the plaintiff and her propensity to engage in this activity and her disobedience of the well known rules prohibiting it, it would seem to me difficult to assert that at the time of the plaintiff's injury it was not foreseeable to the first of the first defendants that there was a risk that she would again break the pool rules and engage in "cutting the corner" during his absence from the pool side. The short way of dealing with such disobedient children (or indeed adults) may well have been simply to exclude them from the pool for a day or two or even longer whenever periodic inspection revealed that they were playing the dangerous game in breach of the pool rules. However that course was apparently not adopted and the rules were obviously more honoured in the breach than the observance by children (including the plaintiff) when pool supervision was attempted from within the kiosk area rather than from the pool surrounds.

Had a ten year old been injured while cutting the corner it may have been arguable that the defendants were in breach of the duty owed to that child in failing to be present at or near the poolside continuously to dissuade him or her from breaking the rules; of course to impose upon a public pool owner/supervisor the same sort of duty as that imposed upon a school authority or teacher on the basis explained in Richards v Victoria [1969] V.R. 136 per Winneke CJ. at 138 approved in Geyer v Downs [1977] HCA 64; (1977) 138 CLR 91, would place those providers of a public facility at which children were not obliged to attend, in the position of parents during their attendance.

On the evidence which I accept from the boys, Walsh and Mundy, they were at the time of the plaintiff's injury towards the end of the day together engaged in some sort of perhaps half hearted "cut the corner" game. The evidence does not disclose that the plaintiff or her sister were engaged in that game. I am unpersuaded therefore that as far as the plaintiff was concerned she was playing the game of "cut the corner" with other young children at the pool at the time. On the other hand, I am persuaded on the probabilities for the reasons I have already given at length, that she in fact did suffer her injury when she dived across the corner striking her head on the wall at the shallow end of the pool. I am unpersuaded upon the whole of the evidence precisely what the plaintiff's sister was doing at that time although she was obviously in the vicinity shortly afterwards. According to the evidence of Bernadette Osborne when she arrived to assist the plaintiff, the plaintiff's sister was giving her support. It is unnecessary for me to make any affirmative finding of precisely what the plaintiff's sister was doing at the time the plaintiff suffered her injury although for the reasons I have given, I have reservations about her reliability in the absence of any other evidence indicating just where she was or what she was doing when the plaintiff was injured.

At the end of the day therefore the issue boils down to whether the defendants have been shown to have breached the duty of care owed to the plaintiff in failing to be physically present to provide "eyes on" supervision from the side of the pool just before closing time on the day of her injury.

In Commissioner for Railways v Hanna (1954) 28 ALJ 656 at p. 658, it was observed in the High Court -

"It may appear, after the event, that if some additional precaution had been taken the accident probably would not have happened. But the mere fact that such an additional precaution probably would have saved an injured person from injury does not constitute its omission a negligent act. --

The question must always be whether there has been an omission to provide some safeguard which, according to experience and reason the exercise of reasonable care required."

In my judgment in the circumstances of the case as I have found them:

(1) The exercise of reasonable care for the plaintiff having regard to her age and her knowledge of pool rules did not require continuous presence at and "eyes on" supervision from the pool side to discourage her from diving across the corner of the pool in breach of the standing instructions not to "cut the corner" even though the first defendant knew from her past behaviour that the plaintiff might do so in breach of those instructions;

(2) On the facts it has not been demonstrated that the plaintiff was in fact playing the game "cut the corner" with other children in any event;

(3) Had the first of the first defendants actually been at the pool side at the time the plaintiff dived across the corner his mere presence may have dissuaded her from making that dive although in view of her past behaviour in breaching pool rules in his presence I am not persuaded that it probably would have. Probably his presence at the pool would have dissuaded the two boys Walsh and Mundy from persisting in together playing the game - even in the half hearted manner in which they appear to have been playing it at the time. It was the playing of the game by children together which seems to have been forbidden. It is not at all clear on the evidence that had the plaintiff at a time she was neither chasing another child nor being chased by another child simply dived across the corner - even taking a couple of steps beforehand to make it a "running dive" - that the first of the first defendants would have had any reason to notice or anticipate what she was about to do. Perhaps if he had observed her make such a dive on a number of occasions with indications that she intended to continue to do so, as a matter of precaution he would have drawn her attention to the obvious danger involved in doing such a thing upon the evidence however that is a hypothetical question and it is unnecessary to determine whether his failure to do so would have involved a breach of duty to warn her - particularly if the observed dives were "long dives" posing less danger than "short" ones.

I am unpersuaded that either of the defendants has been shown to be in breach of a duty owed to the plaintiff to take reasonable care in supervising pool use.

Had I been persuaded that there was a breach of duty it seems to me there would be little reason to distinguish between the responsibility of the first and second defendants in the apportionment proceedings between them.

Had I been persuaded that there was any breach of duty it would have been necessary to consider the question of contributory negligence on the part of the plaintiff. In the light of the findings I have made, she would obviously have been required to bear a very significant share of the blame for her injury. On any basis I should have thought that the injury she suffered resulted very substantially from her own negligence and persistent disobedience of pool rules formulated to discourage such obviously dangerous behaviour. In the light of the findings I have made however, it is unnecessary and indeed, undesirable to make any hypothetical allocation of responsibility for contributory negligence.

It is appropriate in the circumstances of this case for me to embark now upon an assessment of the damages proved by the plaintiff.

The plaintiff has been grievously injured. She has minimal movement only in the upper limbs, head and neck. The very significant constraint on the use of her hands may be alleviated to a relatively minor degree by operative treatment which in my view it would be reasonable for her to have. Even with a successful operation to give her a capacity to grip things with her right hand and perhaps to exert pressure between the thumb and index finger of that hand, she will still be greatly disabled with only a minimum capacity to use her right hand. Perhaps at some time in the future, she may be able to have treatment to give her a similar improvement in function of the left hand. That is really a matter of speculation on the evidence.

For the rest of her life the plaintiff will need to rely upon constant assistance by able bodied people, both during the day time and the night time. She has no control over her bladder or bowel functions and will always have to rely upon the assistance of trained people in this respect.

For all practical purposes it will not be possible for the plaintiff to have children in the future if she desires to do so. A good deal of evidence was called concerning the possibility of her adopting children and/or the possibility of her sister acting as surrogate mother for an embryo produced with the participation of the plaintiff.

I have reservations about this aspect of the plaintiff's case. It seems on the evidence quite unlikely that the exercise of any necessary discretion to facilitate or approve the adoption of a child by the plaintiff would disregard her inability to do anything for the child because of her infirmity. Indeed part of her case involved the claiming of future expenses to be incurred in employing one or more nursemaids and providing them with accommodation so that they might look after a child which the plaintiff might either adopt or acquire through the surrogacy of her sister. Unsurprisingly, the future costs of providing services for such nursemaid assistance were significant and I rather suspect that that was the object of the evidence rather than any real intention on the part of the plaintiff to embark upon such an enterprise, particularly having regard to the deleterious effect it would be likely to have on a child reared in such circumstances.

In any event, in my view every plaintiff is required to minimise the loss suffered by virtue of a defendant's negligence. Far from minimising her loss, expense the plaintiff incurred by embarking upon the adoption of a child or children at a time when her capacity to care for them or indeed even to hold them has been substantially destroyed would involve a failure to mitigate loss and for that reason not be recoverable. In my view it could not be said that the incurring of such expense would be reasonable having regard to the physical incapacity of the plaintiff to give even the most token physical care required by a child.

In my view the correct way to compensate the plaintiff for her inability to have and/or to care for children is to take that into account in the award of general damages for pain, suffering and loss of amenities of life.

The plaintiff has suffered a loss of expectation of life of about 10 years and an award will be made in respect of that loss. Having regard to the material before me, I will assume that the plaintiff has an expectation of life of about 47 years.

I have regard to the awards made in Sailes v Nominal Defendant (Queensland), (Byrne J. 18.8.1993, unreported) and Harrington & Harrington v Queensland Corrective Services Commission, (Keifel J. 26.8.94, unreported).

With respect to interest on that sum, I assess interest on past pain and suffering and loss of amenities on the sum of $45,000 at 2% per annum for 6.65 years in the sum of $6,000.

With respect to economic loss suffered by the plaintiff, I have concluded, looking at the whole of the material that her case based upon her capacity to shear a couple of hundred sheep per day from the time of her injury until about age 40 is contrived, exaggerated and quite unpersuasive. Her evidence in this regard is inconsistent it seems to me with the only record of the actual earnings that she made shearing sheep. It seems to me quite unlikely that she would have gone off shearing sheep and living in shearers' camps comprising mainly, if not entirely, male shearers for at least three or four years after the time of her injury. Indeed, she had registered for work in Surat and was being trained as a barmaid in the Surat Hotel. She indicated at an early stage when discussing matters with Helen Coles, an occupational therapist, that she intended if possible to obtain fulltime employment in the hospitality industry. I think it more than likely that she would have done so. I reject the suggestion made by the father of the plaintiff that an application she made to join the Air Force was so that she might learn how to fly aeroplanes - including helicopters, to assist in the mustering of sheep. This seems to me to be a most improbable explanation for her admitted attempt to obtain employment by joining the Air Force when her parents' grazing enterprise failed and was sold up on mortgagee sale.

I accept that the plaintiff had a capacity to shear sheep. I have reservations as to whether it would have been a capacity any greater than that possessed by many young people, both male and female who have grown up on sheep stations helping their parents from an early age the way the plaintiff had.

A great deal of time was spent examining the opportunities for female shearers. The impression that I got really from the expert evidence was that the life was a rigorous, demanding one. The physical demands often cause back problems after shearing for ten years. Neither the father nor the mother of the plaintiff enjoyed particularly good health after undoubtedly living a hard, demanding life on the land. I am quite unpersuaded that the plaintiff had she embarked upon shearing after spending some years working as a barmaid in a hotel in Surat or elsewhere for that matter would have been particularly attracted to following that lifestyle until age 40 or the onset of back trouble. The likelihood is, I think, that she would probably have married or become involved in a permanent domestic relationship. The demands of such a relationship - should she have married somebody on the land with a background and interests similar to hers for example, would have ensured that her time was to a significant extent occupied as homemaker and carer of children. It is likely that when not so occupied she would have given assistance to her husband as her mother and relatives were accustomed to do.

On the other hand she may have utilized her capacity to do some shearing work from time to time if the opportunity arose and she felt so inclined. She undoubtedly had a capacity to shear sheep and this would have enabled her probably to obtain a job shearing although I must say, I was impressed by the evidence of Mr Clarke and Mr Dawson as to the relatively small number of female shearers who earn any sort of a living shearing sheep in Australia at the present time.

What I propose to do is to assess her past and future loss of earning capacity on the basis that she would have earned a living performing such hotel work and/or some other sort of jillaroo, shearing work as may have become available from time to time. I do not believe that she would probably have embarked upon shearing until she was in her twenties. I do not believe that she would have sheared over a longer period than eight to ten years. She would not have sheared regularly, each week of the year even should she have followed work all around Australia. For practical purposes I take the view that shearing work and jillaroo type farming work that she may have done for eight to ten years up until age, say 30, would have been intermittent work interspersed with either permanent or casual bar work or hotel related work of the sort that she was training to do at the time of her injury. Indeed, some evidence suggests that it was not unlikely that the plaintiff would have gone back to do another years' schooling while living in Surat because she had not completed her final year of correspondence schooling and she believed that perhaps she should complete that year. She had a very moderate education by all accounts which in my view, makes it unlikely that she would have been accepted in the Air Force to train to become a pilot.

For the sake of simplicity, I propose to assess her pre-judgment loss on the basis that she would have earned in that period of time at least the income available if employed full time in the hotel industry at the rates adopted in Mr Collins' report which is Ex. 60. This sum amounts to $77,873.

In addition, she may during the last couple of years, have been able to earn from time to time for 16 weeks per year perhaps an extra $40 per week net over and above the income available in the hotel industry by reason of doing some opportunistic casual shearing and/or jillaroo work with the advantage of obtaining keep as well as a weekly income in cash. To allow for that contingency I adopt $1,280 being the loss of $640 per annum for two years.

On this basis I assess her loss of income to date of judgment in the sum of $79,153.

Under the current Superannuation legislation, employers must make a contribution of a percentage of an employee's gross wage to a superannuation fund for the employee's benefit. 15% of the contribution is taken in tax. When the employee takes the benefit from the fund, 15% of that benefit is taken in tax. Income earned by the fund is taxed at 15%.

Accepting the calculations in Ex. 60 from date of accident up until 30 June 1994, employer contributions to superannuation at the rate of 3% of the gross wage receivable by the plaintiff from date of injury to 30 June 1994 would be $1,200.99. 70% of that sum is $840.69.

For the year 1994/95 the employers contribution to a superannuation fund at 4% of the gross income - $20,624 would have been $824.96.

For the year ended 1995/96 the gross wage would have been $18,963. A 5% contribution of that sum would amount to $948.15.

For the year 1 July 1996 to date of trial the gross income would have been $24,914. An employer contribution of 6% of that sum amounts to $1,494.84.

I calculate therefore the loss of benefit of employer contributions to a superannuation fund for the plaintiff from date of injury to date of judgment (after a deduction of 30% tax) to be the sum of $3,128.24.

I assess therefore the plaintiff's loss of income and superannuation entitlements from date of injury to date of trial in the sum of $83,000.

In arriving at this sum I have not attempted to calculate the loss of superannuation benefit on the sum of $1,280 allowed for any increased earnings from opportunistic casual shearing and jillaroo work. The calculation of the lost income as a full time hotel employee and the lost superannuation benefit on those earnings amount to $82,952. I have simply rounded that figure to $83,000, keeping in mind the loss of superannuation benefit that might also have accrued from opportunistic earnings to which I have referred.

With respect to her future loss of income, it seems to me again that the most reliable touchstone for calculation of this loss is the loss of income that she could have earned between the date of judgment and age 55 while working in the hotel industry. Had she obtained full time employment in the hotel industry and had she acquired additional skills and experience over the years, she may well have earned an average net wage of $320 per week. The present value of the loss of $320 per week for 31 years using the 5 per cent tables is $263,040.

As well during perhaps the first six or seven years she may have sometimes been able to earn an extra $40 per week had she worked opportunistically as a shearer or jillaroo or doing farm work generally.

The evidence is uncertain as to the availability of work in the hotel industry, whether as barmaid or in some other capacity. What is clear is that shearing is seasonal. On the assumption that over the next six or seven years the plaintiff may have earned an extra $40 per week net, perhaps four months per year, the present value of the loss of that sum for 6 or 7 years, using the 5 per cent tables is $2,400.

I assess therefore the total future loss of earning capacity of the plaintiff to age 55 in the sum of $265,440.

With respect to the future loss of employer contribution to a superannuation fund, I calculate and assess that sum as follows:

For the first five year loss of gross income, the loss of a superannuation contribution at an average of 7%.

7% of that sum is $27.20. After tax at 30%, that amounts to $19.04.

The present value of the loss of $19.04 for 5 years using the 5% tables is $4,398.24.

For the balance of 26 years' loss of future earning capacity, the present value of the loss of employer contributions at the rate of 9% of a gross salary of $388.60 for 26 years is -

The present value of the loss of that sum for 26 years using the 5% Tables is $18,580.32.

I assess therefore, future loss of earning capacity resulting in loss of income and superannuation contribution from employment in the sum of $284,396.48.

I have given consideration to whether I ought discount further future loss of earning capacity but have concluded that it would not be appropriate to do so. It may be that the plaintiff would have kept working until she was older than 55. On the one hand she may have married and had a family and have worked very hard perhaps on her husband's grazing property. Perhaps that would have been more successful than her parents' grazing experience. Perhaps it would have been just as unsuccessful. However the plaintiff is being compensated for loss of earning capacity rather than for loss of future earnings and adopting the broad brush approach, it is my view that it would be inappropriate to further discount the assessment for loss of future earning capacity made on the basis indicated.

With respect to the separate claim for loss of superannuation, it is my view, in spite of the expert evidence called from the accountants on both sides in this case, that it is quite inappropriate when assessing future loss to take into account any income component from funds invested in superannuation schemes.

In my view the better way to assess the plaintiff's loss of the benefit of employer contributions to a superannuation fund is simply to take into account the loss of that weekly employer contribution into a fund (after deducting the 15% tax paid on that contribution and another 15% paid when monies are paid out) and add that to the net weekly loss of income suffered. In my view it is far from certain that moneys invested in superannuation funds to become payable perhaps in 20 or 30 or more years time will inevitably be wisely invested to produce even as much as might be produced if wisely invested by the employee rather than by the employer. In essence under the current superannuation legislation, employers are compelled to pay part of the money which they might otherwise pay to their employees into a sort of compulsory savings fund on the assumption that the manager of that fund will be more efficient and perhaps reliable than the employees or their personal investment advisers in saving for retirement. Whether in the long term this expectation will prove justified it is impossible, in my view, to say. However it would be quite contrary to accepted principle for assessment of future loss for personal injury to require the defendant to pay the present value of the net loss not merely of the weekly contribution into a superannuation fund but also of the loss of income which might accumulate in that fund at compound interest.

Consequently I have added to the net weekly loss of income the net amount of the weekly employer contribution to a superannuation fund (after the 30% tax deduction) and treated each simply as the net weekly loss of benefit suffered by the plaintiff in this case.

Whatever tax will be paid by the fund on income it earns (15%) and whatever the management costs and the success or failure of the investment strategies in the long term of the superannuation investment may be, is as uncertain as what long term investment of a weekly saving by an employee out of his or her net wage would produce having regard to interest, management of fees and tax rates etc. applicable during the period of its investment.

It is questionable whether upon an assessment for future loss of earning capacity it should be assumed that the current income level will be maintained indefinitely for the purpose of the present value exercise having regard to the "compulsory saving" legislation which will require an employer to make a contribution towards an employee's retirement, the equivalent of 9% of the gross wage payable. I have already considered this matter in two cases - Meyer v Beck & Anor (Unreported judgment in Townsville Action No. 101 of 1994 delivered on 8 June 1995) and Small v FAI Insurance Ltd, (Unreported judgment in Townsville Action No. 78 of 1992 delivered on 22 June 1995) . The matter was raised in the course of the trial but no submissions have been made on this rather difficult question. Perhaps the answer is that one should simply discount a figure ultimately reached by applying the present value tables to current income levels to take account perhaps of the increased contingency that perhaps economic forces operating over the long term will put at greater risk the maintenance of a wage level for employment which essentially will be the total of the money paid to the employee personally together with the compulsory contribution made to a superannuation fund for his or her benefit or indeed the maintenance of that employment as age increases.

I assess hospital and medical expenses in accordance

Schedule 4 - Ex. 19 - Pharmaceutical Expenses $416.70

Costs involved in making special additions to the home to

accommodate the plaintiff after her release from hospital $994.46

Additional telephone charges - Schedule 8 (Ex. 21) $1,857.25

Travelling Expenses for Mr Hornberg at 42¢ per kilometre $8,467.20

Schedule 10 - Ex. 22. I allow a round figure of $2000.00,

programs for it. I disallow the costs of the table and

typist's chair and car repairs and other household items

With respect to the claim by the plaintiff's father for 1,400 hours said to have been

involved in putting on the addition to the house to accommodate the plaintiff upon her return from hospital, these hours amount to 50 hours per week for six months.

According to the plaintiff's father, he was very short of money and the amount he was allowed by the government to make provision for his injured daughter was insufficient to permit the work to be done by a local builder. In fact he had friends with cypress trees on their property. He went out to the property, cut them down, milled them, cut them into the dimensions of wood required for the construction and put the whole of the building up in this fashion saving greatly on the cost of timber.

It seems clear on the evidence that neither the plaintiff nor her parents intend to live indefinitely at Surat. The additions to the house will probably increase its sale price if and when it is sold. The extent to which that price will be increased however, is a matter for speculation. It may well be that the cost of the extension, making allowance for the hours spent and the care with which the work was done will not be recovered.

What is clear is that the amount claimed by the plaintiff's father is significantly less than it would have cost to get the additions put on by a tradesman who simply purchased the material and assembled it. According to the plaintiff's father, he mixed the concrete for the foundations and floor of the extension on site being so pressed for money, he could not really afford to have ready mixed concrete delivered.

I take all those matters into account. It does not seem to me that the cost claimed is exorbitant. I have come to this conclusion upon an analysis of the actual evidence given by the plaintiff's father and while I am satisfied that members of the plaintiff's family generally were prone to exaggerate matters with a view to making out the best case possible for the plaintiff, I have concluded that in respect of this particular matter the cost/value of the work done by Mr Hornberg to provide essential accommodation for the injured plaintiff should be fixed in the sums of $12,500. It seems to me not unlikely that if and when the house at Surat is sold, having regard to the nature of the extension and its relative incompatibility with the design and function of the rest of the house, the increase in any sale price received by the plaintiff's father as a result of all his work may well be less than $12,500.

I therefore fix the total of special damages in the sum of $280,245.51

Interest on that sum at 3% per annum for 6.65 years is $55,908.98

By far the largest component of damages in the plaintiff's case is for expenses incurred and to be incurred as the result of the need for personal care resulting from her tetraplegic condition.

It is convenient to make some general observations at the outset of this assessment. While undoubtedly the plaintiff has been grievously injured and will require constant and unremitting care and attention in the future (as she has had in the past) nevertheless, on my assessment of it, much of the evidence called on her behalf was contrived and exaggerated and designed to produce the very maximum award of damages conceivable by the plaintiff and members of her family.

At the end of the day it was her case that she should recover the present value of the expenditure of about $6,000 per week which was the likely cost of having a number of persons in attendance upon her constantly for 24 hours per day.

Evidence was led to show that it was likely that within a few years any assistance obtained by the plaintiff would require each carer to be on duty for no more than eight hours per day; and sometimes the attendance of a second carer would be required to give assistance to another in the performance of certain lifting tasks etc. As well as this, some person could reasonably be required to arrange outdoor and social activities for the plaintiff and attend them with her. These services would be in addition to physiotherapy and medical services. She would also need a full time housekeeper.

Because all the persons who would give her assistance would be prepared to be on call for only eight hours per day - unless special penalty rates were paid for longer hours - personal carers would have to attend in shifts. Moreover, sleeping accommodation would have to be provided for one or more of the carers and housekeeper, who as well as being provided with accommodation would expect to be provided with meals. The case propounded on behalf of the plaintiff would seem to involve the use of the dwelling house which she intends to have constructed for her sole accommodation somewhere in Queensland - her preferred location being Charters Towers - in such a way that it would be run almost as a private hospital providing continuous intensive care for one person for the rest of her life.

Undoubtedly there are advantages in persons suffering the serious injury which the plaintiff has suffered becoming de-institutionalised to the extent that the costs of doing so can be kept within manageable limits. In the course of the evidence mention was made of residential style facilities accommodating perhaps three to five tetraplegic patients who might need no bigger staff to care for all of them than a single tetraplegic would need to have care of the sort canvassed for the plaintiff.

Of course philosophically there must be limit to the size and style of such a facility if it is not to acquire the characteristics of the sort of "institutional care facility" which psychologically might well be less to the advantage of the plaintiff than the more private environment which the experts called for both plaintiff and defendants assumed would be desirable for her.

Interestingly, one of the plaintiff's witnesses who was involved in the provision of care for persons with similar disabilities to those of the plaintiff was Ms Mepham from Townsville. It became clear as the case progressed that the only way in which the sort of non-institutional care thought desirable for persons with the plaintiff's disability could be provided was by access to an almost bottomless pocket - which insurers are perceived to possess. Of course the funds available to insurers depend upon the premiums collected from members of society generally. Ultimately in determining what facilities and services are reasonable for persons sustaining injuries of the sort which the plaintiff sustained, one must consider not merely whether the provision of a facility or service may improve her lot but also whether having regard to its cost it may reasonably be demanded of the defendant or ultimately the community generally.

Ms Mepham of Townsville gave an instance of a case where an injured man who, eventually could no longer afford the market cost of residential home care provided by her organisation; was forced to shift into a nursing home where the various skills and services needed were available but where of course the environment was quite different from and obviously less pleasant and acceptable for an indefinite period of time - than was the residential environment which he could no longer afford to maintain.

The problem that that man faced obviously was one that must be faced by all persons who become "institutionalised". The cost of providing that institutional care however was absorbed by the community in a different way. He was required to pay 80% of his invalid pension towards the provision of that care. Undoubtedly the essential specialised care, treatment and equipment etc. that he needed which was a topic canvassed at such great length in this case, must have been available at the expense of the community through government grants, subsidy etc.

Complaint was made in the course of the hearing as to the limits (suggested to be unreasonable) placed upon government institutional funding for services and equipment etc. needed by people with the plaintiff's physical disabilities.

Unfortunately there must be many people in the community who become tetraplegic with all the terrible disabilities which that condition entails who need all the necessary assistance, treatment, services etc. canvassed in this case, who have no insured or very wealthy defendant against whom judgment may be executed in the event that they can prove that their injury was the fault of that person or organisation. Indeed on the facts of this case, I have concluded that this plaintiff cannot establish negligence against either of the defendants.

It is of course a common place that some only of the very many members of our community who suffer loss and injury may fortuitously have the opportunity of recovering damages against a wrongdoer responsible for those injuries. Those who do not have that right of course must look for the provision of needed services, treatment and assistance, both financial and otherwise from institutions with the capacity and willingness to provide them to persons of no or limited financial means.

In determining what a defendant may reasonably be required to provide by way of services, facilities etc. to a person with the plaintiff's disability, it seems to me desirable to keep in mind that there is institutional care available for people with the plaintiff's sad disability, who by chance have no recourse against an insured defendant or indeed, an uninsured defendant for that matter.

Evidence was called from persons involved in the preparation of awards and proposed awards for care givers with different levels of training from whose ranks the plaintiff and indeed, all tetraplegics may be required to obtain assistance either privately or in institutions. Interestingly the point was taken that should a proposed award become registered and applicable in Queensland, it might henceforth be unlawful for people retained to provide services to tetraplegic people living in their own homes to do so on terms and conditions less advantageous to them than would be the case if there was strict compliance with the current award relating to payment of so much per hour for a period of eight hours even if "hands on assistance" might be required for perhaps only a fraction of that period of time.

I have made these preliminary observations before embarking upon the very difficult task of assessing once and for all damages that the defendants ought reasonably pay to a person in her early twenties with a life expectancy of perhaps 47 years, only to indicate that I am far from persuaded that it is appropriate to rely only upon an application of the traditional "discounting factor" to an annual expenditure assessed on the provision of the very optimum assistance and service. I am unpersuaded that I ought assume that an award will become law in this State within the next few years which would so drastically affect the cost of procuring in-house care and assistance of the sort to which the witness Leveritt referred as having become quite common over the years as to put it beyond the financial capacity of those unfortunate people who need and can currently afford it.

With respect to past care there are two periods - the first being eight weeks (from August to October 1992) when the plaintiff was living with her mother and sister in Brisbane, having been discharged from the Princess Alexandra Hospital. At that time the plaintiff's mother was in the course of learning how to take care of her and it is clear that she took care of her very well indeed. In respect of this eight week period, I assess the cost at $630 per week, making a total of $5,040.

After leaving Brisbane, the plaintiff remained in the Surat Hospital between October 1992 and April 1993. She makes no claim in respect of this period.

From her discharge from Surat Hospital in April 1993, until date of judgment, is a period of approximately 228 weeks.

Claims for past assistance in this period by the plaintiff supported by her mother, father and sister, in my view, have been greatly exaggerated. I think the probability is that nearly all the care and assistance given to the plaintiff over this period of time was given by her mother. Undoubtedly from time to time, the plaintiff's sister and her father gave some assistance of the sort that they would have given to her had she suffered a temporary or marginal disability of the sort from which most members of families sometimes suffer. The plaintiff's sister at the material time travelling to and from Roma each day by bus to attend school, would not in my view have had either the opportunity or the inclination to give the sort of care in respect of which the plaintiff claims damages. On the other hand undoubtedly, she did accompany the plaintiff out when she visited people in Surat in her wheelchair and undoubtedly she did the sorts of things from time to time that an adolescent sister might be expected to do if she perceived an unexpected need arose as the result of the plaintiff's disability. I think the sort of assistance given by the plaintiff's father could be similarly categorised. Similarly, assistance was given by Mrs Ray in the provision of passive physiotherapy treatment; she had been given the training necessary to do this fairly simple work by a trained physiotherapist who obviously kept an eye on the progress of the treatment when she saw the plaintiff from time to time. Looking at the whole of the evidence and putting aside as far as possible the adverse impression made on me by the exaggerated evidence led from the plaintiff and members of her family, I assess care for 228 weeks at $850 per week which amounts to $193,800.

The total assessment then for past care to date of judgment is $198,840.

I allow interest on this sum at 2% per annum for 5½ years which amounts to $21,872.40.

With respect to future care, I prefer the evidence given by Ms Stephenson to that given by Mrs Coles.

According to Ms Stephenson, a live-in carer can be retained for $135 per day. In fact there would probably be one carer living in for seven days and providing care at $135 per day for five of them with an assistant carer - probably living-in for only two days and relieving for those two days, also at $135 per day. I think this evidence is persuasive and the amount reasonable having regard to the evidence of French that such a carer could be obtained for $100 per day.

The cost to the plaintiff of providing accommodation, food etc, seven days a week I fix without much assistance on the evidence at $155 per week.

Full time live-in health care I assess as costing the plaintiff in money or money's worth, about $1,100 per week.

In addition to this major expense, I find that it would be reasonable for the plaintiff to obtain "lifestyle care" from some person skilled in organising social and outdoor activities for her for about ten hours per week at $14.00 per hour.

It is conceded by the defendants that in addition to this sum there should be added an 18.5% "commercial on-cost". This takes into account presumably, the costs of providing annual leave, workers' compensation cover, sick leave, superannuation contributions etc. 18.5% of $1,240 is $229.40.

The total cost then to the plaintiff of obtaining a live-in carer and part-time lifestyle carer is $1,469.40 per week.

Adopting Dr Hill's opinion that the plaintiff's life expectancy is 47 years, then using the 5 per cent tables, the present value of the cost of $1,469.40 per week for 47 years is $1,469.40 x 961.50 which amounts to $1,412,828.

I discount this sum to $1.25M. to take into account the ordinary vicissitudes of life, the possibility that Dr Hill may have erred on the generous side estimating the prognosis for the plaintiff's good management and care in the future and the fact that she will in any event, spend perhaps two weeks per year receiving in-patient treatment at a hospital.

I have assessed the future outgoings on the basis of the evidence of the mother of the plaintiff that she would prefer not to continue with the onerous task of caring for the plaintiff who is quite heavy - being perhaps 85 kilograms in weight. The plaintiff's mother is a relatively small woman who had indifferent health prior to the plaintiff's injury and who has suffered I think on the evidence, from the demands which her careful nursing of and attention to the plaintiff have made upon her.

I do not therefore approach the future care and treatment of the plaintiff on a Griffith v Kerkemeyer basis. I simply approach it on the basis of assessing what the present value is of the probable reasonable cost in the future of providing her with the in-house care and assistance which Miss Stevenson says she needs.

I have not made any separate allowance for a housekeeper. In my view the evidence of Miss Stevenson is to be preferred, which is to the effect really, that although a live-in carer would be at call for 24 hours a day when required, it is only for a couple hours a couple of times per day that her "hands on" attention will be required. The housekeeping duties which might be required could be performed at times when she was not giving "hands on" care. The rate of pay used and the assumption that the live-in carer would be provided with full accommodation and food are made keeping in mind my general observations at the outset. Undoubtedly if a more extensive provision of services was provided as suggested by the plaintiff so that there might be a couple of live-in carers to give her any "hands on" treatment needed and as well do her housework and generally to be at her immediate beck and call the effect on her of her disabilities would to that extent be lessened.

In my judgment however having regard to the matters I referred to generally at the outset as to of the nature of the care that it would be reasonable to require the defendants to provide, I take the view that for practical purposes it is quite impossible by the provision of the most elaborate of services to make up to the plaintiff for the terrible loss which she has suffered by virtue of her tetraplegia. In my judgment provision of the assistance which I have outlined is a reasonable compromise between the optimum demanded by the plaintiff and the reasonable minimum suggested by Miss Stevenson. In coming to this conclusion I have regard to the evidence of Dr Max Murray and the nature of the support which he has been given over the years since he also became tetraplegic.

Turning now to the cost of building a home suitable to accommodate the plaintiff with her special needs and those of a live-in carer on a permanent basis, I prefer the evidence of Mr Corrigan (Ex. 97) to that of Mr Deshon (Ex. 6) with respect to the cost per square metre of building a house at Charters Towers.

I must say I would have reservations about the plaintiff building a house at Charters Towers and relying upon the services and facilities available there. However the additional cost of a purpose built home there is probably not much greater than the additional cost of an identical home built elsewhere - indeed it might be less.

I do not on the evidence make any allowance for a ceiling hoist to be constructed in the home. The plaintiff has not had the use of such a facility to date and the evidence really seems to suggest that some people who have them do not use them.

The basis of the plaintiff's claim is for the additional costs involved in having a home built to suit her particular needs rather than the provision of the entire cost of a house. It is far from clear to me that the plaintiff will make use of a swimming pool although the evidence suggests that she might. It may be good for her physically and psychologically to take the benefit of being supported in water - particularly having regard to her size and weight. I agree with the submissions made by the defendants that both air conditioning and swimming pools are common place amenities in houses built in Charters Towers.

I make no allowance for the additional cost providing accommodation for nursemaids.

I assess the additional costs of building the sort of house necessary for the plaintiff in Charters Towers which was considered by Mr Deshon and Mr Corrigan at $125,000.

An allowance for depreciation and recurrent costs for the purpose built house contemplated by the plaintiff are of course only those attributable to the need for special facilities by reason of the plaintiff's disability and the need to maintain them. General painting and maintenance costs etc. of the sort that all houses need are not recoverable as items of damage. Obviously one of the recurrent costs recoverable is the cost of keeping a yard in order. I adopt the figures advanced by the second defendant that the special costs for the purpose built home and the maintenance of it and its yard should be fixed at $1,700 per annum.

With respect to depreciation costs, as I have indicated, in my view, any new home erected in Charters Towers or in most places in that general area would have air conditioning and a swimming pool. I have already disallowed the cost of a ceiling hoist for the plaintiff's use. I allow $163 per annum for Item 1 in Ex. 6 and $670 for Items 2 and 3 in Paragraph 4 of Ex. 6.

Looking at allowance for recurrent costs and depreciation with respect to the special items needed by the plaintiff in her purpose built home in Charters Towers, I allow $50 per week for a period of 47 years, being her life expectancy. Using the 5 per cent tables, this amounts to $48,075. To make allowance for contingencies, I adopt the figure advanced by the second defendant of $43,000.

With respect to additional costs of motor vehicles, travelling etc., I accept the evidence of Mr Freshwater that the plaintiff could buy either a Ford Falcon station sedan or a Toyota commuter bus. If a bus is purchased then it would cost $7,500 to modify it to suit the plaintiff's needs. It would last about ten years. On the other hand, for the same price, the plaintiff might acquire a Ford Falcon station wagon and have it modified by the use of a "flash cab" at a cost of $27,000. This would also last about ten years. I adopt the calculation of the second defendant that the cost of satisfying the special motor vehicle needs for the plaintiff for the rest of her life should be fixed at about $65 per week. The expenditure of $65 per week for 47 years using the 5 per cent tables is $62,497.50. Discounted for the usual contingencies, I assess that sum at $58,000.

With respect to the cost of future aids, I accept as reasonable the details contained in Schedule 1 to the second defendant's submission on this topic which is a modification of Appendix 1 to the report of Helen Coles (Ex. 6) and involves a variation of Schedule 18 tendered by the plaintiff to support this head of damages. The weekly cost of these items totals $223 per week. The present value of the future expenditure of $223 per week for 47 years using the 5 per cent table is $214,414.50. Discounting for contingencies, I assess this head of damage in the sum of $200,000.

It seems to me reasonable in assessing the plaintiff's damages for cost of future aids to include the cost of a Dragon dictate system. That is a system which will allow her to translate her spoken words into print by electronic means which may then either be transmitted electronically to other people with whom she wishes to communicate or be recorded and/or printed for her own use. The plaintiff had a computer before her injury. She was obviously interested in such devices and it seems that her injury has certainly made it reasonable for her to have a Dragon dictate machine for computer use. She is in fact able to use a computer and indeed the "Agreement" which is Ex.23 was produced by her personally on her own computer. Nevertheless in the circumstances, having regard to her serious disability, in my view it would be reasonable to give her the present value of the difference between the cost of the Dragon dictate system (vide Ex. 96) and the cost of a computer package. This is about $8,000 in round figures and on the assumption that such equipment would have to be replaced each ten years, that would represent a weekly expenditure in the sum of $15.31. Using the 961.1 multiplier (see 5 per cent tables) for a 47 year expenditure, this produces a figure of $14,787.87. That amounts to an expenditure reasonably attributable to the plaintiff's disability in the sum of about $23,000.

I accept the modifications of Appendix 1 of the report of Helen Coles of 23 September 1996 advanced by the second defendant and that of Page 1 of Schedule 19 advanced by the plaintiff. I adopt the figures contained in the Second Schedule to the second defendants's written submissions on quantum which amounts to $4,700.

I assess the cost of future aids then for the plaintiff in the sum of $220,000.

I assess the costs of future occupational therapy accepting the evidence of Miss Stephenson (Ex. 109) at $6,500.

With respect to the costs of future physiotherapy, I accept the evidence of Dr Hill that the plaintiff would need a review by a qualified physiotherapist about four times per year and that each visit would cost about $100. I allow $100 per visit which is about $400 per year. It would be well within the capacity of the live-in carer to provide the passive physiotherapy needed by the plaintiff and I make no separate allowance for the provision of that care. Obviously however, the physiotherapy treatment that the plaintiff receives ought be kept under constant review by a trained physiotherapist. I allow $7,000 under this head.

There is no significant disagreement between Ms Stephenson and Mrs Coles as to the cost of future medication. I adopt the views expressed on Page 3 of Miss Cole's second report which is part of Exhibit 6. The weekly cost of future medication will be $156.72. The present value of that expenditure for 47 years is $150,886.28. Reduced for contingencies, I assess that sum in $145,000.

I assess the cost of future psychological counselling which the plaintiff would be advised to take to help her cope with her condition in the sum of $4,500.

The plaintiff will need about ten daily visits to the hospital each year at a cost of $32 per visit. The present value of this treatment for 47 years is $5,646.64. Reduced for contingencies, I assess that sum at $5,250. I proceed on the basis that all the treatment and urine testing etc. required by the plaintiff can be obtained on those ten visits per year to the general practitioner at the local hospital.

The plaintiff will require two weeks hospitalisation per year for the rest of her life. It is agreed that the hospital charge will be $290 per day. The weekly equivalent of the provision of this service is $77.50. The present value of the incurring of that cost for the next 47 years is $74,520. The plaintiff will probably have to attend more regularly in her later years. I am unpersuaded that there should be a significant discounting to take that into account. Discounted I assess the cost of future hospitalisation at $70,000. The cost of future neurological consultations and cystoscopies will involve the plaintiff having an annual cystoscopy, the current cost of which is about $955. The weekly cost of such treatment converts to $18.36. The present value of annual cystoscopies for 47 years amounts to $17,663.14. It is contended for the defendant that this treatment may well be carried out during the hospitalisation in respect of which allowance has already been made. On the other hand it is far from clear that as the plaintiff ages she will only need two weeks hospitalisation per year. Discounted I assess damages under this head in the sum of $15,000.

I assess the cost of IVP or ultrasound including consultation on the basis that this will be required annually at a cost of $218.95. That converts to a weekly cost of $4.21 which over a period of 47 years amounts to $4,047.92. Discounted I assess this head of damages in the sum of $3,750.

I assess damages for loss of expectation of life in the sum of $3,000.

I assess the cost of obtaining the assistance and advice of a dietician with a view to the plaintiff maintaining some control over her weight in the sum of $246.

I make no allowance with respect to any visit to or treatment from the Petrofsky Centre. Having regard to all the medical evidence called in this case, in my view it would be unreasonable to require the defendants to meet any costs incurred by the plaintiff should she embark upon such a course.

I have already referred to the possibility that the plaintiff may have specialised treatment to restore some function in her right hand. She will need specialised equipment which will cost between $40,000 and $42,000 installed. There will need to be tendon transfer procedures which are estimated to cost up to $10,000. Indeed there may be costs additional to those.

The plaintiff will be required to attend the Austin Hospital in Melbourne to obtain the requisite operative treatment and presumably some training afterwards. She will require an attendant to travel with her. The suggestion is that she will require seven trips in the course of obtaining this treatment. The airfares alone will amount to $16,828. Accommodation costs I assess at $1,800. The plaintiff claims $71,600 for travel costs for herself and her attendant. I assess those costs in the sum of $67,500.

On the assumption that the treatment is successful, the plaintiff will need to expend about $500 per annum to keep the equipment operating properly. I assess the present value of that expenditure for 47 years in the sum of $8,653.50.

Part of the equipment being an external control unit worn on the shoulder, will need to be replaced about every five years at a cost of $7,500 per annum. In round figures it will cost the plaintiff $30 per week to keep the equipment in running order and the present value of that sum for the balance of the plaintiff's life is $28,845.

It is unclear just to what extent travelling expenses will be incurred in having the transducers replaced every five years. The evidence is not clear on what the costs will be but doing the best I can on the material, I assume that it will probably involve the plaintiff and an attendant travelling to Melbourne and spending a couple of nights there once every five years. I assume that airfares will amount to about $2,500 and accommodation perhaps $240. Incidentals might amount to $60 for the trip. $2,800 every 5 years is the equivalent of about $11 per week. I assess the present value of this likely future expense in the sum of $20,931.

For the defendants it is contended that it may be that the plaintiff is not psychologically or physically "appropriate" for the proposed operation. Although Dr Hill had some reservations about this matter, there is positive evidence that she is suitable for the operation and I will proceed on the basis that she has a good prospect of the operation being successful and that it is reasonable for her to undergo the operative treatment etc. to which I have referred.

For the defendants it is contended that the cost of the operative procedure should be "offset by various benefits". Among these are listed the increased capacity she will have if the operation succeeds to engage in financially rewarding and other activities, an increased earning capacity, total independence in her working career and perhaps a diminution in the number of hours of care required per day.

Although the evidence suggests that the plaintiff may well be employable in an "accounting" style or related occupation with further studies, I am far from persuaded that this is at all certain. It may well be that with the assistance of the Dragon dictate equipment and also with the increased manual dexterity she will have in the right hand if the proposed operation is successful, she will be able to earn some income. At the present stage of the plaintiff's education and training however, in my view, it would be merely speculative to even attempt to quantify any earning capacity which she may develop in the future. In assessing her lost earnings and loss of future earning capacity, I have adopted what I believe is a conservative approach. To the extent that it is necessary to engage in any "balancing exercise" in the assessment of damages, I proceed on the basis that it is inappropriate to "balance" against the reasonable costs of the plaintiff being given the best manual dexterity in her right hand which medical science can currently provide any potential increase in her earning capacity which might result from the success of that operation.

Without in any way wishing to discourage the plaintiff from making every effort to improve her education and training and her computer skills with a view to becoming at least partly self supporting, I take the view that she will have obvious problems in forming professional relationships and setting up systems which will permit her to analyse and record material not readily accessible upon computer and this may well at least in the foreseeable future, be an impediment to her following any accounting career for which she may qualify in the future - particularly if she endeavours to do so while residing in Charters Towers.

I summarize then my assessment of the various heads of damage as follows:-

Interest on $45,000 of that sum at 2% per annum for 6.65 years $6,000.00

Pre-trial Loss of Income and Superannuation Entitlements $83,000.00

Interest thereon at 5% per annum for 6.65 years $27,597.50

Loss of Future Earning Capacity (Income and Superannuation

Interest thereon at 3% per annum for 6.65 years $55,908.98

Additional costs of building residence for plaintiff $125,000.00

Additional costs incurred in provision of motor vehicle $58,000.00

Cost of future IDP or Ultrasound treatment $3,750.00

Cost of restoration of some function to the right hand -

Travelling Costs for Replacement of Transducers $20,931.00

BRIAN CHARLES HORROBIN AND SHERRY JOSEPHINE HORROBIN

CATCHWORDS: PERSONAL INJURY - tetraplegia - lesion at C4/C5 - accident occurred in public swimming pool - whether plaintiff's injury caused by diving off blocks at the shallow end and colliding with bottom of the pool or by diving across the corner of the pool and colliding with the side or the bottom of the pool.

NEGLIGENCE - duty of pool managers to supervise activities of users of the pool - amount of supervision required - whether constant supervision required to fulfil duty

NEGLIGENCE - duty upon pool owners to provide instructions regarding safety procedcures to operators of the pool - duty to erect signs warning of dangers to safety

Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40;

Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423; and

Inverell Municipal Council v Pennington (1993) Tort Reports 81-234.

Counsel: Mr K. Fleming Q.C. with him Mr P. Sacre for the plaintiff

Mr J. Clifford Q.C. with him Mr M. Daubney for the first defendants

Mr J. Griffin Q.C. with him Mr R. Dickson for the second defendant