Kain v Council of the City of Wagga Wagga - [2007] NSWDC 163 - NSWDC 2007 case summary — Zoe

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Kain v Council of the City of Wagga Wagga

[2007] NSWDC 163

District Court of NSW|2007-05-31

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Source facts

Court

District Court of NSW

Decision date

2007-05-31

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

Introduction

In the early hours of 1 January 2004, following New Years Eve celebrations at a nearby hotel, Mr Kain fell through a gap in the wooden pedestrian walkway of the Hampden Bridge at Wagga Wagga. He fell some 6 metres to the ground below and was injured. He was 18 years old.
These proceedings were commenced on behalf of Mr Kain alleging negligence by the Council of the City of Wagga Wagga and claiming damages. The Council did not dispute that it had the care, conduct and control of the Hampden Bridge at the time, but it denied liability, relied on various provisions of the Civil Liability Act 2002 (the Act) and, in the alternative, alleged contributory negligence.
The Hampden Bridge was opened in 1895 as the main thoroughfare across the Murrumbidgee River in Wagga Wagga, connecting north and south. It was, and still is, 100 metres long with a vehicular carriageway some 7.5 metres wide. Adjacent to the vehicular carriageway, on the upstream side, there was a wooden pedestrian walkway. The bridge provided access to towns in the central west such as Junee and Cowra, and subsequently became part of the Olympic Highway. Until 1995 the bridge was controlled and maintained by the Roads & Traffic Authority (RTA). The bridge became inadequate for the demands of modern traffic and was replaced by a new bridge. In 1995, the RTA closed the bridge to vehicular traffic. I went with counsel to view the bridge at the outset of the trial.
The issues relating to liability are, in summary: · Whether Mr Kain was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired: s 50(1), and if so:

was the accident likely to have occurred anyway: s 50(2), and if so
did the intoxication contribute in any way to the cause of the injury: s 50(3) · Whether the risk of harm was obvious: s 5F of the Act, and if so:
did the Council owe a duty of care to warn Mr Kain of the risk: s 5H.
did Mr Kain prove he was not aware of the risk: s 5G. · Whether the Council owed a duty of care to Mr Kain, and if so, whether it was in breach of its duty, having regard in particular to s 42 of the Act. · Whether Mr Kain was guilty of any contributory negligence, either presumptively under s 50(4) of the Act, or otherwise, and if so, to what extent.

[2]

The Hampden Bridge 5. The Hampden Bridge is, and was at the time of the accident, a wooden construction. The vehicular carriageway consisted of an asphalt surface that had been maintained in good condition since 1995, having regard to its availability for use by pedestrians. The pedestrian walkway on the upstream side was some 1.37 metres wide, and consisted of wooden planks, but was not maintained in good condition. By the time of the accident many of the wooden planks were missing, leaving holes in the walkway. This pedestrian walkway was separated from the vehicular carriageway by a barrier. Mr Kain climbed over this barrier from the vehicular carriageway to the wooden walkway immediately prior to his fall. At that point the barrier was a metal construction, almost triangular in shape, consisting of posts, rails and other metal plates: see Exhibits A1 and A2. At its base the width of the barrier was some 66cm to a metre wide. At its peak, the top of the triangle, there was a circular metal rail some 1.06 metres high, supported by metal posts. On the vehicular carriageway side there was thick wire mesh consisting of large squares with sides of about 33cm, extending from the ground to the top railing: see Exhibit M. There was no wire mesh on the walkway side of the barrier, but there was a square railing about 60cm above the walkway, about 30cm to 40cm out from the top railing: see Exhibit A2. 6. At each end of the bridge there was another metal barrier about 3.5 metres wide and a metre high, blocking vehicular access: see Exhibit 1. Pedestrian access to the old vehicular carriageway was possible on each side of this barrier: see Exhibit A2. Access to the wooden pedestrian walkway was blocked at each end of the bridge. 7. At the southern end there was a white wooden post and rail fence about a metre in height across the front of the entrance. The entrance itself was covered by a high fixed metal gate, comprising a mesh of thick cyclone wire: see Exhibit E3. There was a prominent warning sign at about head height on the mesh that read: WARNING WALKWAY CLOSED 8. At the northern end, at which Mr Kain entered onto the bridge, the entrance to the wooden pedestrian walkway was covered by high wire netting, of a less substantial nature than that at the southern end, supported by steel Y bars: see Exhibit A2. There was no warning sign at the northern end. 9. There were no other warning signs at any point along the barrier between the vehicular carriageway and the wooden walkway. 10. After the RTA closed the bridge to vehicular traffic, an agreement was reached pursuant to which control of and responsibility for the bridge passed to the Council. As part of the hand-over arrangements, the RTA made a contribution of $1.2m for its maintenance, which it paid in annual instalments of $200,000 between 1995 and 1999 (see Exhibit K). The Council continued to allow pedestrian traffic on the old vehicular carriageway, which was maintained for that purpose, but allowed the old pedestrian walkway to fall into disrepair. Thus, by the time of Mr Kain's accident it had deteriorated into a dangerous condition. It is in an even worse condition today, however the whole of the bridge was closed in 2006 (see Exhibit L at page 65) and is now barricaded at each end with heavy mesh, and no access is possible to any part of the bridge. 11. The Hampden Bridge is significant from a heritage point of view. It was described as follows in Section 1.1 of a Stabilisation Report prepared in April 1996 (see Exhibit L at page 4):

[9]

Matthew Kain 1993 - 2003 17. Until 2002, Mr Kain had had an unremarkable upbringing. He was born on 17 December 1985, and lived with his parents and two older brothers in Lake Albert, a suburb of Wagga Wagga. He attended the local primary school and then went to Karingal High School, where he was an unexceptional student. He did, however, excel as a sportsman, and in particular as a footballer (Australian Rules), and played in representative teams. However, he suffered several injuries when playing football. In 1999 he injured the cartilage in his left knee, and in 2001 he dislocated his right kneecap. He recovered from these injuries. Then in September 2001 he dislocated his right shoulder, and although he continued to play football, his shoulder gave him some trouble. (Two years later he had to undergo a right shoulder reconstruction.) 18. In 2002, when he was in Year 11, things started to go bad for Mr Kain. During the previous year he had started drinking and taking drugs; marijuana at first, then amphetamines and by 2002 he was also using ecstasy. In July 2002 he was referred to the Child & Adolescent Mental Health Service (CAMHS) for counselling relating to his drug use, and depression. He said he then stopped using marijuana for a period. He obtained a job in September 2002 as a 'night-filler' at Big W, working 15 to 20 hours a week. 19. Then in October 2002, at the age of 16, he was involved in an horrific car accident. He was a passenger in a car that ran off the road and ended up in the river. He was submerged under the water for an extended period, possibly in excess of 5 minutes. Friends managed to pull him out of the submerged car, applied CPR and revived him. He thought he had died, and had an 'out of body' experience. He was taken to the Wagga Wagga Base Hospital where he remained for some days, in intensive care, where he was treated for lung damage and bruised kidneys. At some stage shortly after he was discharged, he noticed he was passing maroon urine and went back to hospital where he collapsed and was put on life-support for some days. Although he recovered physically following this accident, he suffered from disorientation and sequelae such as flashbacks and a fear of cars. He said also gave up his job at Big W because his concentration levels 'weren't the same'. 20. At about this time, Mr Kain also completed a TAFE course in hairdressing. From the age of 14 it had been his ambition to become a hairdresser. 21. Things got worse in 2003. He was experiencing sleep and appetite problems, weight loss, aggressive behaviour, and episodes of severe depression, associated with drinking and drug abuse. In January 2003 he underwent further counselling. He was exhibiting suicidal ideation and 'grandiose' delusional behaviour. His Case Manager, Ms Debbie Williams, noted for example that he described his life as like a movie - drug dealing, sex with hot chicks, police around, and fights. He complained of blisters on his feet from being chased by the police who were constantly watching him, because he was involved in drug dealing. He was admitted to Gissing House, described as the Wagga Wagga mental institution, where he remained for nearly 2 weeks and was treated with medication. He came under the care of Dr Alyson Hickey, a psychiatrist, and was diagnosed as having a bi-polar disorder, and drug related psychosis. There is a strong family history of bi-polar disorder, and his elder brother, Damian, had been diagnosed with the condition at the age of 21. He was placed on a regime of medication to stabilise his condition. 22. Mr Kain continued at school in 2003, his Higher School Certificate year. He struggled. His medication produced side effects of somnolence. He was unmotivated and drowsy. In July his medication regime was changed, to Epilim only, and he felt better. But he was still using drugs and drinking, and may even have increased his drug use, although he said he stopped around May or June and 'held back' in the lead up to the Higher School Certificate exams. He said that he also took himself off his Epilim medication at the time of his exams. Other things were happening in his life. In about April he received burns to his hands and a foot in a cooking accident at home. In July he dislocated his knee playing football. And in September he underwent a right shoulder reconstruction, a week before the HSC exams. He sat the exams with a writer. He achieved a mark that would have enabled him to undertake the hairdressing course he wanted to do, at TAFE. 23. But there was further drama after his exams and, unfortunately, a return to heavy drinking, and, it seems, some drug use. November 2003 was an eventful month. Within the space of 9 days there were three major events: the school-leaving dance, a Mystery Bus Tour, and a combined 18th/21st birthday party with his brother, Adam. He drank to excess at these events, and on the bus tour took drugs given to him by strangers. At the birthday party he took half an ecstasy tablet. He fainted, and had to be taken to hospital. On 24 November 2003 he was again admitted to the dreaded Gissing House, suffering from hypomania, following aggressive behaviour, including a fight with his brother, and threats of self-harm. Dr Hickey recorded:

[12]

New Year's Eve 2003/2004 27. On 31 December Matthew Kain, recently turned 18, and recently having finished school, went out with friends to celebrate at the Palm and Prawn Tavern, a pub situated in the northern part of Wagga Wagga, a little way out from the central part of Wagga Wagga, over the river. Prior to going to the pub, Mr Kain travelled from his place at Lake Albert to the house of his friend, Simon Osbeiston, in central Wagga Wagga, where they had a barbecue. They were later driven to the pub, together with another friend, Greg, by Simon's mother, arriving at about 8.20pm. They met other friends there, including Jessica Allen, in whom Mr Kain was interested, hoping she might become his girlfriend, and he spent much of the evening with her, moving between the inside and the garden area where a band was playing. Mr Kain's parents were also at the Palm and Prawn Tavern that evening, and from time to time he spoke to them. He said that he drank about 5-6 light beers, middies and stubbies, during the course of the evening, and took no drugs. He did, however, smoke cigarettes, and at one point purchased a packet. At midnight the pub stopped serving alcohol, but Mr Kain and his friends stayed on for another hour or so, till about 1.00am, when they left the pub. 28. Having left the pub, Mr Kain and the group of people he was with, including Simon and Jessica, waited outside, trying to get a taxi, without success. Eventually they decided to walk back to town, a distance of about 2 kilometres, via the Hampden Bridge, a walk of some 15 to 20 minutes. 29. According to Mr Kain's version, when they arrived at the bridge he was walking with Jessica, who was on his right. Simon was about 3 metres ahead, and the main group about 10 metres ahead of him. Then there was another group, 10 to 15 metres behind. They entered onto the middle of the bridge, being the former vehicular carriageway. Mr Kain was talking to Jessica and they had progressed some 30 metres along the bridge when he decided to 'hop over' onto the pedestrian walkway. Although he had not been on the bridge in recent times, Mr Kain recalled having been driven over it as a boy, during a local festival, when he saw people standing on the walkway watching a boat race. Carried away with what he described as the ambience of the situation, he proceeded to climb over the barrier between the carriageway and the walkway. He had no difficulty in climbing over the barrier, and then stepped down onto the walkway. He looked ahead but didn't see the hole in the walkway, and started to walk forwards. As he did so he called out to Jessica. He took two steps and fell through the hole. 30. Mr Kain said it was very dark and the hole was not visible. He conceded in cross examination that as he took the two steps he was focussed on Jessica, and looked in her direction, but denied that the hole in the walkway was visible, and rejected the suggestion that there was a contrast in shade, the gap being darker in appearance than the grey wooden planks on either side of it. He also conceded that he relied on his memory of the walkway from his boyhood when climbing over the barrier, and didn't check because he believed it was safe. He denied seeing the wire barrier across the entrance to the walkway at the northern end as he came onto the bridge. There were, as I have indicated above, no warning signs at the northern entrance or along the barrier. Mr Kain also denied that he was drunk or intoxicated by drugs. 31. There was no lighting on the bridge. There were two streetlights positioned on the street near the northern entrance to the bridge, one 25 metres to the west and the other 14 metres to the east (see Exhibit A2). There is no evidence that these lights were not operating on the evening of the accident. When examined in 2006 by Dr Gordon Watson, a lighting expert retained for the Council (see Exhibit 4), these streetlights both had 150-watt High Pressure Sodium sources mounted in luminaires. He took various illuminance measurements, which are set out in his report dated 9 August 2006. He also undertook a visibility appraisal. At the point at which he (wrongly) assumed the accident occurred, at about 3.00am on 26 July 2006, he could see details of the barrier and the wooden walkway, including areas where timber boards had been removed (Paragraphs 22 and 36). At this point the illumination was measured at 0.2lux (Paragraph 16). 32. Simon Osbeiston and Jessica Allen gave versions of the evening that were substantially similar to that of Mr Kain. Specifically they denied that Mr Kain was affected by alcohol or drugs at the time of his fall. They confirmed he only drank light beer during the evening, and did not take any drugs. He was not slurring his words, unsteady on his feet, behaving aggressively or being stupid. If Matthew had been taking drugs, the symptoms would have been evident, such as bloodshot eyes, slowness of motor skills and a docile demeanour. According to Simon, as they proceeded over the bridge he started distancing himself, as he thought Mathew and Jessica needed to be alone. He estimated the main group was about 30 metres ahead, as he could hear them talking. Then suddenly Jessica screamed. He turned around, but couldn't see her, as it was very dark, and he went back about 5 to 8 metres to find her. She told him Matthew had fallen through the bridge, and they both went back along the bridge and down onto the riverbank to find him. Simon denied he was drunk. According to Jessica, she walked to the bridge with Mathew. Simon was with main group about 10 to 20 metres ahead, but had almost reached the other side when she and Mathew got to the bridge, as she could see them. Having regard to the length of the bridge, the arch in it, and the darkness, I am satisfied Jessica was mistaken about the position of the group, and as to her ability to see them at the end of the bridge. She and Matthew proceeded onto the bridge, chatting, and when she reached a point beyond the double yellow lines (see Exhibit A1) she suddenly noticed he wasn't at her side, but was on the walkway. She said, "What are you doing?" but before he could answer he had fallen. She screamed out to Simon, and together they ran under the bridge where they found Matthew crawling up the bank. Jessica conceded she had consumed some 7 or 8 Vodka cruisers during the evening and was tipsy, but denied she was drunk. 33. Mr Kain's father and mother also gave evidence that tended to corroborate that he was neither drunk nor intoxicated by drugs on the evening of his fall. Over time, both parents had learned to read the indicators of drug use. Mrs Kain could pick up the telltale signs. Indeed, she could smell it, mainly on his hair. Neither parent believed Matthew had drunk to excess or consumed drugs at the Palm and Prawn Tavern. Mrs Kain had kissed him goodnight when they left in a courtesy bus around 1.00am, and his eyes were not bloodshot, nor did she smell marijuana. When she was called to the hospital later that morning, she observed no signs of intoxication or marijuana use.

[13]

Events subsequent to the accident 34. Following his fall Mr Kain was taken to the Wagga Wagga Base Hospital, where he came under the care of an orthopaedic surgeon, Dr A Nicholls. X-rays of his left ankle revealed a grossly displaced fracture dislocation of the talus, with complete lateral and anterior displacement relative to the tibial plateau; a fracture of the medial malleolus, carried laterally with the talus; and an oblique fracture of the distal shaft of the tibia. The fibular fracture was an oblique injury extending from 13cm to 6cm proximal to the distal end of the tibia. He had also sustained a compression fracture in the lumbar spine at L1. There was also an anomaly at T11, but this was considered developmental, not due to the fall. Due to the demands on medical staff, he was not operated on till 9.00am on 1 January 2004, when the ankle was treated with an open reduction and the insertion of a diastasis screw. He was kept in hospital and treated with intravenous antibiotics, with his left leg elevated in a plaster back slab. Five days later he was taken to the operating theatre for inspection of the wound under general anaesthetic and closure was performed. A new back slab was applied. He was discharged on crutches the next day, 6 January 2004. 35. He recuperated at home. The plaster stayed for seven weeks until it was removed, and the crutches went shortly afterwards. A further operation was required on 19 March 2004 when the diastasis screw was removed. Thereafter improvement was rapid and he was walking well, and 'even jogging'. However, he continued to experience considerable pain and discomfort in both his left ankle and his lower back, which has continue through to the present time. 36. Understandably, his mental state was not good following the accident and he drifted back into a depressive state. On 20 January 2004 he had a telephone conversation with Suzanne Cameron, who was his case manager at the Wagga Wagga Community Mental Health Service, following his diagnosis of bi-polar disorder. She had built up a rapport with Mr Kain over that period. In her record of that telephone conversation she wrote:

[15]

The defence relies principally on this note to ground its case that Mr Kain became intoxicated from alcohol and drugs on New Years Eve at the Palm and Prawn Tavern, as a consequence of which he subsequently fell from the Hampden Bridge. 37. Ms Cameron gave evidence. She said that her notes, including that relating to this conversation on 20 January 2004, were usually made within 24 hours, but it was generally only a summary, unless in inverted commas, which signified a memory of an exact quote. She confirmed that Mr Kain demonstrated paranoia and on occasions delusions of grandeur in his conversations with her. He sometimes said 'extraordinary things' and displayed some 'bizarre beliefs'. If he was in a manic state, it was her practice to seek corroboration of anything he said. She confirmed that he was 'terrified' of a return to Gissing House. 38. During the course of 2004 Mr Kain's mental condition deteriorated, and he went into 'black depression'. His dosage of Epilim was increased in February, and the Risperidone was terminated in May, due to its 'nasty side effects', including its sedative effect and erectile dysfunction. 39. In June 2004 he was granted a Disability Support Pension in consideration of his continuing physical and mental problems, and in July he went to the Commonwealth rehabilitation Service (CRS) for assistance in obtaining work. 40. In August, following episodes of suicidal ideation he was prescribed Cipramil, an anti-depressant, but this was ceased in September when he developed hypomania. 41. Finally, at the end of September 2004, he obtained employment at the Murrumbidgee River Cruises as a deck and kitchen hand. This turned out to be what he described as a 'dream job' and he worked there till 9 December 2004. In this job he was under the supervision of Mr Andrew Organ, the head Chef, who turned out to be a sensitive and flexible manager, who allowed Mr Kain to work according to his limitations, after it came to his attention that Mr Kain had some disabilities. He worked split shifts 5 days a week, from 9.00am to 1.30pm and 4.00pm to 10.00pm. Mr Organ arranged his work duties to accommodate these problems, to minimise bending over and breaking up his work so that he wasn't spending long periods on one task. His duties mainly involved cleaning, but also involved some cooking and food preparation. He spent most of his time on his feet. 42. Mr Organ gave evidence. He described Mr Kain as a keen and enthusiastic worker, whose work was impressive. He considered him worthy of training in other aspects of the business, such as ordering and paperwork, and worthy of promotion. 43. Unfortunately, for Mr Kain, the proprietor of the business did not agree, and when Mr Organ moved to another job in December 2004, Mr Kain's employment at Murrumbidgee River Cruises was terminated, due to concerns about him becoming a workers' compensation liability. This caused him considerable distress as he was enjoying the work and re-establishing a sense of self-worth. . He relapsed into depression. 44. He moved to Sydney to stay with his older brother, at Coogee, for about 9 months. Whilst in Sydney during 2005 he attended group therapy sessions at Bondi Junction organised by the Community Mental Health Service. He also attended TAFE, where he undertook a certificate course in Youth Work. This involved some work experience at the Glebe Youth Centre, which he enjoyed. He tried to enrol in the TAFE diploma course in Youth Work for 2006, and was put on a waiting list. Unfortunately, he didn't get into the course, apparently due to funding restrictions, and so he moved back to Wagga Wagga at Christmas. 45. Back in Wagga Wagga during 2006, it appears Mr Kain didn't do much. He continued taking medication. In June he met Ms Tiffany Willis, a relief teacher in the Wagga Wagga area, with whom he entered into a relationship. As will emerge, meeting Ms Willis was something of a turning point, and they subsequently moved in together, in January 2007, and the relationship, which has all the indications of being strong and permanent, continues. It is clear that Ms Willis is a positive influence in his life. She gave evidence that since meeting her, Mr Kain has not used drugs and drinks in moderation. He is happy and 'ambitious to get ahead'. He stopped taking medication altogether in November 2006. 46. Mr Kain started looking for work in January 2007 then in April he obtained work at Salmat as a telemarketer, on three months probation. He said he was doing well in this job, which involves sitting at a desk selling products over the phone. He has regular breaks, although he is stiff at the end of the day. He said he was happy with the work, and has prospects of promotion, although he would prefer to be working in hairdressing. According to Ms Willis, he is excited about his job, but he does come home complaining of an aching back, and she gives him a back massage for 10 to 20 minutes each evening.

[16]

Credit 47. It was submitted on behalf of the Council that Mr Kain was an unreliable historian and that his evidence was not to be accepted on key issues. He had told many lies in the years leading up to the accident, including to his parents, and it was impossible to tell when he was lying and when he wasn't. He was untruthful to doctors, in particular Dr Akkerman and Dr Cook. Even his case manager, Ms Cameron, conceded his propensity to tell stories that suited himself. 48. All of that may be so, but I formed the view that in the witness box, Mr Kain told the truth. He gave his evidence in a straightforward way, without embellishment, and even with a certain amount of youthful ingenuousness. Clearly in the past, particularly during his manic phases, he had a capacity to be grandiose and tell falsehoods, but these were not lies; rather they were total fabrications and inventions, designed to enhance his personal image. And, while it is important to take account of his capacity for embellishment, and to view all of his evidence cautiously, he received positive and consistent corroboration on all the critical matters from other witnesses, each of whom were clearly honest and whose integrity was never seriously challenged by the Council. 49. Mr Kain was a likeable young man. He obviously has charm, as evidenced by his popularity, and by the fact that he formed strong relationships, such as that with Ms Allen, and his current relationship with Ms Willis. It was also evident that Ms Cameron liked him. 50. I also formed the view that Mr Kain has indeed changed. He has reached a point in his development where he has matured and settled down, is more responsible and confident. I accept that his days of drug taking and binge drinking are behind him, and it is probable that his present relationship will mature and blossom and he will henceforth be a sensible and reliable member of the community. 51. In short, I believe he was a creditworthy witness whose evidence I pretty much accepted in its totality.

[17]

Was Mr Kain's capacity to exercise reasonable care and skill impaired? 52. The first main issue affecting liability is whether at the time of his fall from the Hampden Bridge Mr Kain was intoxicated to the extent that his capacity to exercise reasonable skill and care was impaired: s 50(1) of the Act. 53. The Council contended that Mr Kain had consumed at least 8 beers and had smoked marijuana on the evening of his accident. This was what he said to Ms Cameron in the telephone conversation in late January 2004, and was consistent with his history, including his recent history, namely the three post school events in November 2003. It was submitted that the notion of an epiphany on New Years Eve was fanciful, and that Mr Kain was intoxicated at the time of his fall, such that his capacity to exercise reasonable care and skill was impaired. 54. In my view, the evidence supports a conclusion that Mr Kain was indeed on a good behaviour course on the evening. He had had a frightening experience when readmitted to Gissing House in November, and it is not surprising that he was taking steps to avoid readmission, by avoiding drugs and binge drinking. 55. The Council led no direct evidence to contradict Mr Kain's assertion that he took no drugs that evening, and only consumed some 5-6 light beers, middies and stubbies. His version was supported by Mr Osbeiston and Ms Allen, neither of whom detected any signs of intoxication at any time during the evening. Similarly, Mr Kain's parents detected no signs of intoxication, and refuted any suggestion of drug taking by their observation of him and contact with him at the hospital, after the accident. None of the other persons at the Palm and Prawn Tavern was called to contradict his version, nor was there any evidence to the contrary from the ambulance officers or any hospital staff. 56. It was submitted for Mr Kain that it was telling that the Council failed to call any contradictory evidence, either from patrons of the Palm and Prawn Tavern, other friends of Mr Kain, or pharmacological evidence on the issue of intoxication. I agree that it was open to the Council to have carried out such investigations, but either did not, or did not discover any material that assisted its case. 57. It seems to me, therefore, that the only basis for impugning Mr Kain's version of that evening's events rested upon Ms Cameron's note of her conversation with him on 20 January 2004, and the Hospital Discharge Summary. As to the latter, there was no evidence as to any basis for the comment there, and no adverse inference is to be drawn from it. As to Ms Cameron's note, Counsel for Mr Kain did not put in issue the accuracy of the note. But even if Mr Kain did say something similar, that is not conclusive evidence of any drug taking on New Years Eve. I accept that he did not smoke any bongs or take other drugs that evening and I so find. If he did say something of the sort to Ms Cameron, then it was but another of his grandiose statements to her, fuelled perhaps by some need to avoid a return to Gissing House. See for example Dr Akkerman's first report of 11 August 2007, at the penultimate paragraph on page 7. In any event, I prefer the totality of the other evidence to the contrary. 58. I find, therefore, that Mr Kain had, by the time of his fall, only consumed less than seven middies or the equivalent of light beer, over the course of at least six hours, and was not intoxicated to the extent that his capacity to exercise reasonable skill and care was impaired at the relevant time. 59. But even if it were to be accepted that Mr Kain's capacity to exercise reasonable skill and care was impaired at the relevant time by reason of any intoxication, I am satisfied that his injuries were likely to have occurred in any event. I am also satisfied that any such intoxication would not have contributed in any way to the cause of his injuries. 60. I agree with the submissions made on Mr Kain's behalf that climbing over the barrier to the defective walkway and walking on it were acts of impetuosity, driven by "youthful exuberance, or romantic intentions", and not a product of any intoxication. I will come to this issue in more detail, but for present purposes I am satisfied that the defects in the walkway would not have been seen by anyone in the prevailing circumstances, sober or otherwise.

[18]

Was there an obvious risk? 61. It was submitted for the Council that I should find that if Mr Kain had been looking where he was going, he would have seen the contrasting colour between the missing wooden planks and the intact wooden planks of the walkway, and been alerted to the danger, sufficiently to put him on notice of it. This is to be inferred having regard to the evidence of the lighting expert and the lay witnesses, in particular Ms Allen, as to visibility. 62. By climbing the barrier onto the walkway, then walking on it in the dark and without looking where he was going and not knowing its condition was "a leap of faith". The risk in such circumstances was obvious: s 5F(1) of the Act, and in particular s 5F(4). Thus, the Council contended, Mr Kain is to be presumed to have been aware of the risk of harm: s 5G(1), or at least was aware of the type or kind of risk, even if not aware of its precise nature, extent or manner of occurrence: s 5G(2); and there was no duty to warn him of the risk: s 5H(1). 63. In my view, the evidence of the lay witnesses, including that of Ms Allen (to which I have already adverted), does not support such a conclusion. Their consistent evidence was that the darkness was total. 64. It was submitted on behalf of the Council that the lighting from the streetlights, which complied with Australian standards, was sufficient for Mr Kain to see where he was walking. The lighting expert, Dr Watson, could see around on his inspection and in particular was able to see the contrast between the gray boards and the gap. However, Mr Kain's fall in fact occurred at a point further along the bridge than Dr Watson assumed, as to which he made his calculations and undertook his visibility appraisal. I find that the accident occurred some 15 metres further onto the bridge, and I infer that any illuminance measure, at that point, was in fact very dark, and would in all probability have gone below the required minimum standard. 65. There are other reasons why the expert evidence is not to be preferred over the lay evidence, and is to be discounted: Dr Watson knew what he was looking for. And he looked at the walkway from an adjacent angle, over the barrier, not from the perspective of Mr Kain, making the gap easier to see (compare Exhibit A1 with A2). At the time of his visibility appraisal in 2006, the physical state of the walkway had deteriorated considerably and the gap was much more prominent than it was in 2004 (compare Exhibit A with Exhibit D). 66. Mr Kain had no prior knowledge that the walkway was defective. Having regard to his childhood recollections of its presence and its use by pedestrians; the absence of any warning signs; the thin wire mesh over the northern entrance, hard to see in daylight but in all probability invisible at night; the deficiency of the street lighting to illuminate the walkway; the inadequate nature of the barrier between the carriageway and the walkway, the simplicity with which he was able to climb over it; and the absence of any other indicators of the dangerous nature of the walkway, an integral part of the bridge structure, Mr Kain was not alerted to the danger, and I am satisfied that to climb over and step along the walkway was not a risk obvious to him or that would have been obvious to a reasonable person in his position. I am also satisfied that it was reasonably foreseeable someone in such circumstances would do so. 67. I am satisfied not only that Mr Kain did not see, and could not have seen, the gap in the walkway, but also that he did not see, and could not have seen, any contrast in colour or shade, sober or otherwise. He was not alerted to any risk, nor was it a risk that would have been obvious to a reasonable person in his position. The act of climbing over the barrier, even in darkness, did not constitute an obvious risk in the circumstances. I find that he did in fact look ahead, before taking any steps forward, but saw nothing. He did, however, after that initial look, then look in Jessica's direction and all of his attention was averted towards her, but he did so believing it was safe. The taking of two steps, even in darkness, did not constitute an obvious risk in the circumstances. His climbing over the barrier and taking two steps was the conduct of a reasonable person. Nor were there any other factors or circumstances that rendered the risk obvious although not prominent, conspicuous or physically observable. 68. I find that there was no risk to Mr Kain that was an obvious risk. I find also that Mr Kain was not aware of any risk of harm. 69. Accordingly, Mr Kain is not presumed to have been aware of the risk of harm, and the Council's duty to warn him of the risk was not negated.

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Breach of duty 73. It was submitted for the Council that its response to the risk of injury posed by the wooden walkway was proportionate, having regard to the probability of an accident and the disproportionate effort and expense required to repair or remove it, or to seal off access to it: Wyong Shire Council v Shirt (1979-80) 48 CLR 40 at pages 47 - 48. There was no evidence of any previous occurrence, and it was unreasonable to expect the Council to erect a barrier so high or so impenetrable to prevent the odd chance of someone attempting to cross it in the dead of night. There was no evidence as to the cost or practicability of removing the walkway. So far as signs are concerned, there was no likelihood that Mr Kain would have seen them in any event. There was lighting provided at each end of the bridge, which facilitated the crossing of pedestrians using the old vehicular carriageway, which was maintained in an appropriately safe condition. 74. However, it is not necessary to show that the precise event that resulted in the injury was foreseeable: Caledonian Collieries Ltd v Speirs [1957] HCA 14 at [12]. It is only necessary to consider whether it was reasonable to foresee in a general way the kind of thing that occurred: Thomson v Bankstown Corporation (1953) 87 CLR 619 at 630. And the absence of past mishaps does not entitle a defendant to ignore safeguards against dangers: Romeo v Conservation Commission of the Northern Territory [1998] HCA 5 at [128]. The risk posed by this walkway was in fact substantial. Death was a possibility. The response of the Council was inadequate. 75. The means of alleviating this risk were straightforward and relatively inexpensive. The Council did effectively seal off access to the southern entrance to the walkway, and erected a warning sign. But the wire netting at the northern entrance was flimsy and invisible at night, and there were no other warning signs. The wooden planks on the walkway could have been maintained, or replaced when necessary. A proper barrier could have been erected between the carriageway and the walkway. The evidence establishes that security fencing could have been installed in 1996 at a cost of around $50,000.00. It may also be inferred from the evidence that removal of the walkway could have been effected for no more than $40,000.00. Lighting could have been installed to illuminate the whole of the bridge. What exacerbated the Council's failure to take sufficient precautions was the allocation to it of specific funding for the maintenance of the bridge, both by the RTA and by the NSW Heritage Office. 76. For these reasons, I am readily satisfied that the Council was in breach of its duty of care to Mr Kain. That breach of duty was directly causative of Mr Kain's injuries. 77. Mr Kain is, therefore, entitled to damages by reason of the negligence of the Council, for those injuries and their effect on him. 78. Before turning to the damages, however, I need to consider whether those damages should be reduced for contributory negligence.

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Was Mr Kain guilty of any contributory negligence? 79. It was submitted that I should find that Mr Kain was not guilty of any contributory negligence. In support of this proposition counsel for Mr Kain asked, rhetorically, what cue was there to the existence of any danger; and that this danger was a concealed one, or "trap": Skulander v Willoughby City Council [2007] NSWCA 116 at [89]. What Mr Kain did was not unreasonable in the circumstances, and not indicative of any lack of care for his own safety. At worst Mr Kain "may be faulted for looking at Jessica, rather than paying close attention to the surface upon which he was walking" and that might amount to momentary inadvertence. 80. I am not satisfied that Mr Kain's conduct can be dismissed as momentary inadvertence, but even if it could be, "an inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact": Sheldrick v State of New South Wales [2007] NSWCA 105 at [53]. Mr Kain's conduct was conscious and deliberate, albeit that it may have been thoughtless. 81. Notwithstanding the risk of danger was not obvious, that is not to say that there was no prospect of any danger. A reasonable person in the circumstances in which Mr Kain found himself, in particular that of complete darkness, should have been alert to the possible existence of some risk: C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [112]. 82. The determination of the issue of contributory negligence is a question of fact on which minds may differ. It has also been held that: "It is tempting but erroneous to compare closely the facts of cases decided in the past with the facts of the case calling for decision": Knight v McLean [2002] NSWCA 314 at [61]. In my view, Mr Kain's conduct in climbing over the barrier, in conditions of total darkness, then proceeding along the walkway, directing his attention to Ms Allen, amounted to a failure to take reasonable care for his own safety. 83. I find, therefore, that it is just and equitable that Mr Kain's damages be reduced by reason of his contributory negligence. 84. The question then becomes, to what extent is it just and equitable to reduce his damages. In considering this issue I must take into account his relative culpability in comparison to that of the Council: Barisic v Devenport [1978] 2 NSWLR 111. I am guided also by the statement of principle in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529 at 532-3:

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Damages 87. I turn to consider the damages to which Mr Kain is entitled. He seeks damages for past out-of-pocket expenses, for future hospital, medical and other out-of-pocket expenses, for future assistance, for loss of earnings in the past, for a loss of earning capacity in the future, and for non-economic loss. No claim is made for past attendant care and assistance, but I should record that I would not have awarded any damages under that head of damages. The parties were able to agree on the quantification of past out-of-pocket expenses at $377.00, which are minimal due to his having been dealt with as a public patient. I do, however, need to address each other head of damage claimed. 88. Mr Kain was born on 17 December 1985 and is now 21. He was brought up in Lake Albert, a suburb of Wagga Wagga. He is in a relationship with Ms Tiffany Willis and they live together. He is working at Salmat as a telemarketer, earning about $450.00 net per week. 89. Orthopaedically, Mr Kain is now stable. He has had a good outcome from the surgery but is left with significant permanent disabilities in the left ankle and lower back. 90. The Council did not tender any medical reports relating to the orthopaedic injuries, and I can give full weight to the opinions of the medico-legal evidence tendered on that issue for Mr Kain. Dr Voss, a practising orthopaedic surgeon in Goulburn, summarised the present position in his report dated 26 July 2006. 91. As to the back, Dr Voss accepted the complaints of Mr Kain as to pain and restrictions of movement, and did not exclude ongoing effects from the compression fracture of the first lumbar vertebra for an indefinite period. Particular ergonomic care and instruction will be required, but overall further treatment is unlikely to make a difference. He will need pain relief from time to time in the form of standard analgesics. 92. As to the left ankle, Dr Voss considered it certain that there is significant damage to the articular surfaces of the distal tibia and the dome of the talus. In addition there is slight instability of the talus in the left ankle mortice, associated with a palpable click. This and the "almost certain" effects of cartilaginous injury will give rise to progressive degenerative changes in the left ankle joint. The rate of degeneration will depend on the level of strain under which the joint is placed. This will inhibit Mr Kain's ability to squat. The most likely outcome in the future will be arthrodesis of the joint, unless by then medical progress is such that a prosthetic ankle joint will be possible. 93. Dr Voss regards Mr Kain as able to cope with a sedentary or semi-sedentary occupation not involving lifting or bending. His physical restrictions will prevent him from undertaking various domestic tasks, handyman tasks and home maintenance tasks. He expands on this in a supplementary report dated 18 September 2006. 94. Turning to the psychiatric sequelae of the injuries sustained by Mr Kain, there is no doubt that in the immediate period following his accident, these were severe. 95. He clearly underwent a hypomanic response, and drifted back into a black depression in 2004. He was recovering from this during his period of employment with Murrumbidgee River Cruises, but suffered a relapse when he lost that job. Upon arrival in Sydney, his recovery progressed, and improvement since then has been steady and continuous. It appears that by the end of 2006, particularly after meeting Ms Willis, it had all but gone. 96. Dr Mary Jurek was the consultant psychiatrist qualified on Mr Kain's behalf, and she provided a report dated 28 October 2006. In her opinion, his fitness for work is reasonably good, provided his bi-polar condition is well controlled; his substance abuse is under control and his mood stable. However, bi-polar disorder is "a lifelong, relapsing illness". In her opinion Mr Kain's condition, combined with his physical disabilities, places him at a more severe disadvantage on the open labour market. The accident has impacted on his bi-polar condition. 97. Dr Klaas Akkerman was the consultant psychiatrist qualified on behalf of the Council, and he provided reports dated 11 August and 30 October 2006. In his opinion, any exacerbation of Mr Kain's pre-existing bi-polar disorder has abated. The condition has improved, but will require constant and regular ongoing treatment and supervision. He will need to take medication for the rest of his life. His psychiatric condition is stable, but the prognosis is guarded. But his mental condition currently leads to no restrictions on his ability to work or undertake domestic activities. If, however, his condition relapses, he would not be able to work. 98. I prefer the evidence of Dr Akkerman. His reports, in particular his opinions, are more lucidly expressed and reasoned, and accord, in my view, more closely to the facts as I see them. I am not satisfied, therefore, that there are any ongoing psychiatric sequelae, and in particular that there is no ongoing exacerbation of the pre-existing bi-polar disorder. Any future psychiatric problems, including any relapse in his bi-polar condition, will be attributable to Mr Kain's pre-existing condition, or future circumstances, and not the fall on 1 January 2004.

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Economic loss 101. It is not disputed that Mr Kain has suffered a loss of earnings or that his earning capacity has been diminished. The dispute relates to the extent of his loss. 102. Mr Kain makes a claim, as to the past, for lost earnings of $15,600.00, restricted to the period from 1 January 2005 to 31 December, at a rate of $300.00 net per week. Specifically, he makes no claim for 2006. 103. The Council contends that there was no evidence to support any claim for loss of earnings in 2005, and that Mr Kain could, and should have obtained appropriate employment. 104. In my view, however, the claim for past loss of earnings was modest, even understated. Having regard to the medical evidence, the extent of his physical injuries, and his psychiatric reaction, particularly the effect of losing his job at Murrumbidgee River Cruises, I am satisfied that he has suffered significant lost earnings by reason of the accident. I therefore allow the claim for $15,600.00. 105. The assessment of Mr Kain's future economic loss is complex, as the likely course of his working life, but for the accident is not as clear-cut. On the one hand, I find myself sceptical as to the proposition that he would have spent his working life as a hairdresser. On the other hand, I believe the accident has, ironically, actually ensured he will have a more stable working future than would otherwise have been the case. His disabilities have, in my view, been a catalyst in his total abandonment of drug abuse and binge drinking, and setting him on a "straight and narrow" course. In my assessment he is unlikely, in the future, to so indulge, and will be careful to ensure that his bi-polar condition is kept stable. I consider that the probability of relapse is low, and that any future impact on the continuity of employment will be minimal. 106. Mr Kain is an ambitious young man, who has demonstrated a capacity to adapt to his problems. He is happy in his current relationship and will, in my view, be determined to have successful family life, supported by prosperous financial circumstances, which will require him to continue in steady employment. 107. Nevertheless, Mr Kain has considerable disabilities that diminish his future earning capacity to a significant extent, particularly in the future when the degenerative changes that Dr Voss considers are inevitable begin to manifest themselves in symptoms. In these circumstances, an award by way of a buffer is in my view appropriate, to reflect his continuing problems, which reduce his ability to compete on the open labour market. 108. For all these reasons, I am satisfied that the following assumptions about Mr Kain's future earning capacity accord with his most likely future circumstances, but for his injuries: he would have worked till the age of 65, at first for some years as a hairdresser, and thereafter in an enterprise that enabled him to utilise his personal skill and charm, possibly running a hairdressing business or some similar entrepreneurial activity. His early years of employment would otherwise have been punctuated by episodes of irresponsible behaviour, from time to time, but that gradually he would have matured and set a responsible course, and continued in steady employment for the rest of his working life. By reason of his accident, however, his capacity to compete for work or to conduct a successful business has been diminished having regard to his physical restrictions. This will become more acute in his later life with the onset of the degenerative changes, and there will lost income associated with future operative treatment on his left ankle. On the other hand, the potential for impact from any psychiatric problems has been diminished. 109. There are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injuries. 110. I determine the amount of damages for future economic loss, after an adjustment of 85%, in an amount of $75,000.00, inclusive of future superannuation. Such an amount is in my view appropriate to compensate Mr Kain for his future loss of earning capacity.