Defence - s5 Motor Accidents (Compensation) Act - was there an "occurrence" on a "public street" - ordinary English meaning of "occurrence" - injuries sustained as a result of a number of "occurrences", so long as one of these "occurrences" occurred on a "public street" - was the track and gate on land which was a "public street" - meaning of "entrance driveway" - definition of "public street" - meaning of "open to and used by the public"

• was the use actually made of the land used by the public as the public, or was the use casual or occasional - meaning of "thoroughfare".

Pleadings - onus of proof - legislative provisions amended since the common law position enunciated - invitation for further written submissions - hearing complete - plaintiff wished to amend his Statement of Claim and re-open - primary consideration is embarrassment or prejudice to the other side - significance of evidence only realised after judgment reserved.

Statutory interpretation

• definition of "public street" - eiusdem generis rule - purpose of the Motor Accidents (Compensation) Act .

Motor Accidents (Compensation) Act Motor Vehicles Act Control of Roads Act Road Traffic Act 1919-1941 (WA) Local Government Act 1928 (Vic) Motor Vehicles Act 1959 (SA)

March v E & M.H. Stramere Pty Ltd [1991] HCA 12; (1990-91) 171 CLR 506 followed; Wickham v Tacey (1985) 83 FLR 327 doubted; Schubert v Lee [1946] HCA 28; (1946) 71 CLR 589 followed; Boynton v Nominal Defendant (1980) 2 NSWLR 509 distinguished; Nominal Defendant v Merritt (1988) 48 SASR 278 distinguished; Leslie v City of Essendon [1952] VicLawRp 31; [1952] VLR 222 applied; Chellingworth v Territory Insurance Office (1993-94) 29 NTR 15 applied; Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 doubted; Murray v Figge (1974) 4 ALR 612 doubted; Smith v New South Wales Bar Association (No. 2) [1992] HCA 36; (1992) 176 CLR 256 considered; Londish and Others v Gulf Pacific Pty Limited [1993] FCA 470; (1993) 45 FCR 128 considered; Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459 approved; Northern Territory of Australia and Katherine Town Council v Shoesmith (1996) 5 NTLR 155 applied; Australian Safeway Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479 considered; Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 146 ALR 572 considered; Cavalier v Pope [1906] UKHL 1; [1906] AC 428 considered; Parker v Housing Trust (1986) 41 SASR 493 considered; Wilmot v State of South Australia (1993) 62 SASR 562 considered; Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40 followed; Romeo v Conservation Commission of the Northern Territory [1995] NTCA 126; (1995) 123 FLR 84 approved; Giner v Public Trustees and Another (1991) 105 FLR 410 applied

DARWIN, 21-24, 28-30 April 1997, 25 November 1997 (hearing), 4 December 1997 (decision) #DATE 4:12:1997

Counsel: Plaintiff: T Riley Q.C. 1st Defendant: T Anderson Q.C. 3rd Defendant: S Walsh Q.C.

Solicitors: Plaintiff: Hunt and Hunt 1st Defendant: Ward Keller 3rd Defendant: Solicitor for the Northern Territory

This is an action for damages for personal injuries suffered by the plaintiff as a result of the alleged negligence and breach of duty of care by the defendants. The plaintiff claims that on 6 September 1987, when he was 14 years of age, he was riding his unregistered and uninsured motor cycle on vacant Crown land owned and controlled by the third defendant along a track leading towards the end of Verburg Court, Stuart Park, a suburb of Darwin, having entered the land from Verburg Court through an open gateway a short time previously. At both ends of the gateway was a fence constructed from Armco-type railing. There was a "gate", consisting of a single metal pole, which could be slid into sleeves at each end of the fence. The plaintiff claims that the "gate" was normally left in the open position, and was in that position when he entered the land. The plaintiff claims that, after he entered the land that day, a person unknown slid the pole across the gateway, thereby closing the gate. The gate, it is alleged, was difficult to see, and hazardous. The gateway and fence was not constructed precisely on the boundary of the third defendant's land, but was in fact constructed on land which was part of the end of Verburg Court, and was owned and controlled by the first defendant. As the plaintiff rode his motorcycle towards the gate, he failed to observe that the gate had been closed, and collided with it, as a result of which he sustained severe personal injuries. The plaintiff alleges that both the first and third defendants owned to him a duty of care, and breached that duty in the circumstances, as a result of which he suffered the injuries in question.

The plaintiff has not pursued his claims against the other defendants. Liability is denied by both the first and third defendants. Alternatively, contributory negligence by the plaintiff is in issue. By arrangement between the parties, the matter was heard by me to determine questions of liability only. So far as the first and third defendants are concerned, I am also required to determine, in the event that both defendants are found to be liable to the plaintiff, the question of apportionment of liability as between those defendants.

I will hereafter refer to the first defendant as "the Council" and to the third defendant as "the Territory".

One of the main "defences" relied upon by the defendants is based upon the provisions of s5 of the Motor Accidents (Compensation) Act , which abolishes claims for damages for personal injuries by residents of the Northern Territory in respect of motor vehicle accidents which occur on public streets in the Territory. It is not in dispute that the plaintiff was a resident of the Northern Territory, nor that he suffered his injuries as the result of an occurrence in the Northern Territory which was caused by or arose out of the use of a motor vehicle. The area of dispute is whether or not the occurrence was on a "public street", as defined by the legislation, which refers to the definition of "public street" found in the Motor Vehicles Act , and which at the time of the accident, was as follows:

" "public street" means any street, road, lane, thoroughfare, footpath or place open to, or used by, the public and includes a road on land leased under the Special Purposes Lease Act for use as a road, but does not include -

(a) an entrance driveway; (b) a road, or part of a road, that is closed under the Control of Roads Act or under the Local Government Act ; or (c) a street, road, lane, thoroughfare, footpath, or other place, under construction." The plaintiff contended that the "occurrence" did not occur on a public street for two reasons; first, because the land in question was not a "street, road, etc ... or place open to, or used by the public"; secondly, if this submission is unsound, the "occurrence" occurred on or in "an entrance driveway."

Before dealing with this issue it is necessary to reach some basic findings of fact concerning the accident, the land in question, and the gate.

At the time of the accident, Verburg Court was a dead end street which ran in roughly an east-west direction. At its western end, Verburg Court formed a T junction with Nudl Street. The northern side of Verburg Court was occupied by private homes; the southern side consisted of a single allotment, lot 3936, upon which was situated the Stuart Park Primary School. The plaintiff lived with his parents and elder brother Shane on lot 3930 Verburg Court. This was the fifth block from the eastern end of Verburg Court. Verburg Court runs from Nudl Street to the western boundary of a large area of vacant Crown land. At all times, Verburg Court was in the care, control and management of the Council.

Verburg Court had a bituminised surface approximately 7 metres wide. The road was kerbed and guttered. On either side of the bituminised road surface was a footpath approximately 5 metres wide.

At the eastern end of Verburg Court, the bituminised surface stopped at a point approximately 1.2 metres from the western boundary of the vacant Crown land. The eastern end of Verburg Court was not kerbed or guttered.

The vacant Crown land to the east of Verburg Court was an extensive area of land which extended east to Frances Bay Road. There were no buildings on the land. In approximately 1983, the Council constructed a BMX bicycle track on a small part of the Crown land. Access to the BMX track was via an unmade dirt track from the eastern end of Verburg Court. The Council's records (Ext P12) indicate that the Council did not envisage that the track would be used by motorcyclists.

According to Ext P12, by early 1986, following "a number of complaints from local residents that vehicles and motorcycles were entering the land from Verburg Court", (the file indicates only one complaint) the Council constructed an armco barrier fence across the full width of the road reserve. Within a few days of completion of the work, the Council received a complaint from Telecom that the fence prevented Telecom having access to the Crown land to service equipment thereupon. In view of this, the Council removed a section of the fence and installed a lockable pole rail gate. According to a memorandum dated 10 September 1987 (see Ext P12), written by a senior supervisor in the Council's employ, Mr Crawford, the original gate had a reflective sign attached to it. The Council left the gate locked, and suggested that Telecom collect a key, but Telecom wanted the gate left open. No attempt was made to collect the key, and the chain to the gate was found to be cut a week or so later. Council employees then secured the gate again. Three or four weeks after this, the pole gate had been removed, and the lock and chain were missing. Council then replaced the gate, but did not provide another lock and chain. On the other hand, a Works Request by one of the Council's inspectors indicates that the Council reinstated the gate on the 3rd of May 1985. The Request also noted "gate to be left open at all times for Telecom." A letter from a Mr J Lynne dated 25 November 1985 refers to the existence of the gate which "has never been closed or locked since the day it was erected." I consider that it is more likely that the Council originally erected the fence and a gate in early 1985. In late 1985 the fence and gate were removed to enable drainage works to be carried out on the Crown land. Thereafter, in January 1986, the fence and gate was replaced by the Council. When this was done, the fence and gate was not built precisely on the boundary with the vacant Crown Land. It is not in dispute that the fence and gate ran approximately north/south and was between 0.64 and 1.16 metres to the west of the boundary.

As to the gate, it is not in dispute that at the time of the accident it consisted of a single galvanised iron pole which was designed to be slid into a sleeve attached to the western side of the northern portion of the fence. To close the gate a similar sleeve was provided on the fence on the opposite side of the opening. The steel pipe was approximately 5 cm in diameter and unpainted. The pipe was at a height of 1 metre above the ground (see photo D, Ext P2). The opening is approximately 3 1/2 metres wide (and not 2 metres wide as deposed to by Constable Herold - see the photos Ext P2 and the survey plan Ext D1G). The southern end of the gate is virtually in line with the southern kerb of Verburg Court. The northern end of the gate is in approximately the middle of the continuation of the bituminised road surface. There were no signs of any kind attached to the gate or to the fence.

As to the track leading from the gate onto the vacant Crown land, the photographs Exts P2 and D1K indicate that there was an area of cleared land between the fence and the gate before reaching a line of tall dry spear grass and coffee bush about 35 metres away. The track itself is barely visible or distinguishable from any of the other cleared land, but proceeded roughly east before taking a bend to the north behind the tall grass and low shrubs. Thereafter it appears as a rough single motor vehicle track (see Ext P2, photo A). The track leads to the BMX track about 100 meters away.

The track appears to have been used mainly by children riding bicycles or motorcycles. Occasionally Telecom workers used the track to access a service point which was about 35-40 metres from the gate, and the fire brigade sometimes used it, presumably to control bush fires. The impression I have was that the use was probably by no more than a handful of people, but I am unable to say whether there was even as many as ten. A few, such as the plaintiff and his friends, and his brother Shane, used the track several times a week to access the BMX track with motor cycles or pushbikes. Occasionally pedestrians walked on the land, but not necessarily on the track, to access Woolner Road, and the plaintiff's brother, Shane, apparently used it for that purpose as well. Apart from the track, there were a number of other single tracks used by children and youths to ride their bicycles, or trail bikes and by pedestrians walking their dogs or jogging and the like. It is difficult to be precise, but I consider that the various tracks on the land were used in this way probably no more than a few times each day.

As to the accident, I find that the plaintiff, at about 5 p.m. on 6 September 1987 was riding his unregistered and uninsured motorcycle in a westerly direction towards the gate. I find that he did not see the gate in time to avoid it and that he collided with the gate at a speed, probably somewhere between 40-60 kph, when his body came into contact with the single steel pole which constituted the gate and which was in the closed position at the time. As a result, the plaintiff came to rest in Verburg Court between 1.6 metres and 2.8 metres from the bar. The impact of the plaintiff with the pole was sufficient to distort the pole several centimetres (see Ext D1D). As a result, the plaintiff sustained severe injuries and is now a quadriplegic. It is probable that the bar hit the plaintiff first on the chest, and then again under the chin as he came under the bar. This caused a fracture at the C2 level, and the resultant quadriplegia. It is not likely, and there is no evidence that, the plaintiff sustained any injuries of significance when he hit the ground.

S5 of the Motor Accidents (Compensation) Act provided at the time of the accident: -

"No action for damages shall lie in the Territory in respect of the death of or injury to a resident of the Territory in or as a result of an accident that occurred in the Territory." S4 of the Motor Accidents (Compensation) Act then defined "accident" as follows:

(i) on a public street, as defined in the Motor Vehicles Act , caused by or arising out of the use of a motor vehicle; or

(ii) in any place in the Territory, other than a public street, caused by or arising out of the use of a Territory motor vehicle in respect of which a compensation contribution under Part V or section 137 of the Motor Vehicles Act has been paid or a motor vehicle currently registered in a State or another Territory in accordance with the law relating to the registration of motor vehicles applicable in that State or Territory; and

(b) in relation to a place outside the Territory - an occurrence caused by or arising out of the use of a motor vehicle,

occurring on or after 1 July 1979, and which results in the death of or injury to a person;" I have already set out the definition of "public street" above.

The first question is, what is the "occurrence" which gave rise to the plaintiff's injuries? Is the "occurrence" the moment the plaintiff struck the gate, or does it extend beyond that? This is of considerable importance, because the "occurrence" must be on a "public street".

In my opinion, the noun "occurrence" must be given its ordinary English meaning. The Oxford English Dictionary, Vol X, 2nd Edn., defines it as "that which occurs or is met with or presents itself; an event, incident": see also the Shorter Oxford English Dictionary. The Macquarie Dictionary similarly defines it as "something that occurs; an event or incident". An "occurrence" is not necessarily limited to a single moment of time or to a single place. The legislation refers to "an injury ... as a result of an accident"..., but is the occurrence to be divorced from its causes or are all the causes part of the occurrence? On the one hand, it could be said that the causes of the plaintiff's injuries included the erection of the gate, the failure to put signs on or near the gate, the design of the gate, the act of some unknown person in closing the gate, the failure of the plaintiff to see the gate as he approached it, and the plaintiff's speed, all of which culminated in the striking of the gate. Mr Walsh Q.C. submitted, and I think correctly, that the plaintiff's injuries were sustained as a result of a number of "occurrences", and that so long as one or more of these occurrences occurred on a "public street", as defined, the plaintiff's action must fail. Therefore it is sufficient if the track along which the plaintiff was riding immediately before the impact is a public street; similarly if the gate itself was on a public street. Mr Riley Q.C., for the plaintiff, submitted that the "occurrence" in this case was confined to the moment the plaintiff's chin struck the gate, but I do not accept this. First, an "occurrence" does not have to be an act of negligence, although it may be. The Motor Accidents (Compensation) Act provides for a "no-fault" compensation scheme. There is therefore no necessary connection between negligent occurrences and those which are not. Secondly, the occurrence must be related to the injury, in the sense that the injury is a result of it, or caused by it. In my opinion, this means only that there must be a causal connection between the occurrence and the injury for it to be legally relevant; the test of causation is the same test for these purposes as that in March v E & M.H. Stramere Pty Ltd [1991] HCA 12; (1990-91) 171 CLR 506, esp. at 515-519 per Mason CJ; at 522-524 per Deane J. What is a cause is a question of fact by applying common sense to the factual circumstances. In this case, the evidence is that the gate in its closed position was visible for about 33 metres away. In those circumstances, the fact that the plaintiff failed to see the gate, and stop accordingly, (whether negligently or not), is as a matter of fact and common sense, a cause of his injuries. It is therefore necessary to consider whether the track was a public street and if not, whether the gate was on land which was a public street. But there is an added complication in that, even if both the track and the gate were on land which would otherwise be a "public street", both could be excluded from the definition if the relevant land was an "entrance driveway". It is convenient to deal with this question first.

6.3 Was the eastern end of Verburg Court and the track an "entrance driveway"?

There is no definition of "entrance driveway" to be found in either the Motor Accidents (Compensation) Act or the Motor Vehicles Act . Nor is that an expression to be found in any dictionary that either the researches of counsel or I have been able to find (I should add that this includes dictionaries of technical terms). I am not able to say that this is a common expression in everyday use. The origin of the expression is shrouded in mystery.

The word "driveway" is defined by the Oxford English Dictionary 2nd Edn., Vol IV as follows:

"Chiefly N. Amer. [f. DRIVE v + WAY] A way along which something is driven. a. A course along which game are driven in hunting. b. A road or way along which animals or vehicles are driven; a carriage drive. Also, a private carriageway for a motor vehicle alongside, in front of, or leading to a house, garage, or other building; a drive." c. A passageway for the conveyance of hay, grain etc., into a barn." The New Shorter Oxford Dictionary defines "driveway":

"In. chiefly N. Amer. M19 [f DRIVE v + WAY n] 1. A passageway by which hay, grain, etc. can be taken into a barn. M19. 2. A course along which game is driven in hunting. L19 3. A road along which animals or vehicles are driven; spec. a private road leading to a house, a drive. L19. 4. A scenic highway. Canada. E20." The Macquarie Dictionary definitions are:

"1. A passage along which vehicles may be driven, esp. outside a private house. 2. The area in the front of a service station adjacent to the petrol pumps." Chambers Twentieth Century Dictionary's definition is:

"A carriage drive: a driving road." The word "entrance" is obviously adjectival and describes "driveway". Thus what is meant is not every driveway, but only those driveways which provide a means of entrance from one place to another, such as from a public street to private land. I think that it is likely that the draftsman intended to use the word "driveway" in the sense of a private carriageway in front of or leading to a house or building, (and possibly also to include the area in front of a service station adjacent to petrol pumps). Any wider meaning, such as "a road along which animals or vehicles are driven" or "scenic driveway" would make the exclusion as wide as the definition and usages relating to carrying grain to barns and hunting can be excluded as highly improbable.

Further, the entrance to a driveway, is not the same thing as an "entrance driveway", and I consider that the draftsman meant to exclude more than the mere point of entrance. The argument before me is whether the intention was to include the crossover from the bituminised road surface proper of Verburg Court to the adjoining Crown land; for example, it was contended by Mr Riley Q.C. that it did include this area, and would also include, for example, the crossover from the kerb to the entrance of a driveway to a private house, notwithstanding that this crossed over a footpath. I do not think that this was intended. It would seem odd that the draftsman would have specifically excluded areas which crossed over public footpaths within gazetted road reserves which are in actual use by the public, and I doubt that this is what was intended. Further, leaving aside the meanings I have excluded, the dictionary definitions suggest that that word "driveway" is confined to a vehicular carriageway upon private land, leading to a house or building (or to petrol pumps) and the area in question does not fit this description because it was neither on private land, nor did it lead to a house or building. In the result, I conclude that the land where the gate was positioned was not on an "entrance driveway".

This question gave rise to some difficulties because of the way in which the parties approached this matter in the pleadings and at trial.

In the Amended Statement of Claim, the plaintiff pleaded (paragraph 5) that Verburg Court is a public street as defined by the Motor Vehicles Act . In paragraph 16, the plaintiff further pleaded that the part of Verburg Court to the east of the gate barrier was not at any time a public street as defined. Particulars of paragraph 16 were supplied which made it clear that the plaintiff was asserting that the land to the east of the gate barrier and the track was not open to or used by the public, and further, that in any event the accident occurred on an entrance driveway. The first defendant, by paragraph 4 of its Further Amended Defence, admitted paragraph 5 of the Amended Statement of Claim and by paragraph 12, denied paragraph 16 thereof. However, by paragraph 17, it pleaded that "the accident occurred on a public street, as defined in the Motor Vehicle Act , and that the action brought by the plaintiff is barred by s5 of the Motor Accidents (Compensation) Act . The third defendant, by its Amended Defence, admitted paragraph 5 of the Amended Statement of Claim (paragraph 1), denied paragraph 16 of the Amended Statement of Claim (paragraph 14), but then went on to positively assert in an elaborate plea that the action could not be maintained because the land to the east of the gate barrier and the track were both public streets as defined in the Motor Vehicle Act , and the action could not be maintained because of the provisions of the Motor Accidents (Compensation) Act .

The evidence at trial and the submissions of counsel concentrated on whether the land and the part of the Verburg Court to the east of the gate barrier was "used by" the public, rather than whether it was "open to" the public.

According to a decision of this Court, Wickham v Tacey (1985) 83 FLR 327 at 330, O'Leary CJ held that the plaintiff must plead and prove at trial the matters that place the plaintiff outside of the ambit of s5 of the Motor Accidents (Compensation) Act . The provisions of s5 have been amended since then, and it is open to doubt whether that decision accurately reflects the true position at the time of the accident and since. If that decision is correct, it seemed to me a possibility that, there being no evidence that the areas of land in question were or were not "open" to the public, as opposed to "used by the public", and that question not having been addressed by counsel, I should invite further submissions in writing on that question and as to where the burden of proof lay. Ultimately when these submissions were received, I felt that I needed to hear further from counsel for the parties, particularly as counsel for the plaintiff indicated that if his submission was not accepted, he wished to further amend his Statement of Claim and re-open his case. At the resumed hearing, objection was taken by Mr Anderson Q.C. to the plaintiff re-opening his case; in the end, after hearing submissions, I indicated that I would allow Mr Riley Q.C. for the plaintiff to further Amend his Statement of Claim by adding paragraph 16A thereof as follows:

"The land and the street including that part of the street to the east of the gate barrier were not at any material time opened pursuant to the Control of Roads Act ." I permitted this amendment on the basis that I would treat the defendant's defences as having denied that allegation. I further permitted the plaintiff to tender evidence by affidavit to prove the allegation contained in paragraph 16A and I permitted the third defendant to tender an affidavit (which was not objected to) relating to the status of Verburg Court, de bene esse, subject to my deciding that the plaintiff should be permitted to re-open his case.

So far as that part of Verburg Court to the west of the gate barrier is concerned, there is no contest between the parties; all are agreed that it was a public street as defined at the time of the accident. So the issues are whether the land to the east of the gate barrier including the track was a public street, as defined, and whether the burden of proof lay upon the plaintiff to prove it was not, or whether the burden of proof lay upon the defendants to prove it was.

There are a number of authorities which discuss the meaning to be given to the definition of "public street", the most important of which is the decision of the High Court in Schubert v Lee [1946] HCA 28; (1946) 71 CLR 589, which considered an identical provision in the Road Traffic Act 1919-1941 (WA), s4 (the definition of "road"). In that case the Court held that the definition is not limited to "public" streets. A lane falls within the definition if it is in fact "open to or used by the public" whether or not there is a public highway over it. The legal status of a street, road etc therefore is not determinative; what needs to be shown is that the place in question was a street, or road etc, and that it was "open to or used by the public".

Mr Walsh Q.C. submitted that the words "open to or used by the public" qualified only the word "place" and not the other words in the definition. I reject this argument. In Schubert v Lee , supra , at 592 Latham CJ, and Rich and Dixon JJ said:

"Prima facie the words of the section means streets, &c., which actually are open to or used by the public so that there is some need for the protection of the public in the use of such streets, &c." I do not consider that the land in question could properly be described as a street, road, lane or footpath in the ordinary sense of those words.

Mr Walsh Q.C. submitted that "place" meant any place, so long as it was open to used by the public, and was not to be interpreted eiusdem generis with "street, road, lane, thoroughfare, or footpath." He relied upon Boynton v Nominal Defendant (1980) 2 NSWLR 509 and Nominal Defendant v Merritt (1988) 48 SASR 278. However in both of those cases, the legislative definition being considered was quite different. In Boynton v Nominal Defendant , the definition with which the Court of Appeal of New South Wales was concerned was:

"'Public Street' means any street, road, lane, thoroughfare, footpath, or place open to or used by the public, and includes any place at the time open to or used by the public on the payment of money or otherwise. " Glass JA said, at 512:

"The words "place open to or used by the public", followed by an intimation that this would still be satisfied if it was necessary to pay money to enter the place, suggest to my mind that the draftsman was going beyond the notion of a thoroughfare which allowed passage to take place along the tracks with a defined margin." His Honour distinguished Leslie v City of Essendon [1952] VicLawRp 31; [1952] VLR 222, to which I will return, relying on the words of the definition which I have italicised above.

Hutley JA also relied upon the words in the definition I have italicised, which he said, at 512, "clearly points to the exclusion of the eiusdem generis rule." Samuels JA agreed with both Glass and Hutley JJA. I note that Boynton (supra) was followed by Carruthers J in Byrnes v Groote Eylandt Mining Co (1989) 95 FLR 69 at 81, who applied it to the definition in the Act, but I consider Boynton to be distinguishable.

In Nominal Defendant v Merritt , supra, the definition was:

(b) any other place commonly used by the public or to which the public are permitted to have access." Jacobs J said, at p285, that there was no reason to read down the extended definition of "road" by application of the eiusdem generis rule or otherwise, and to do so would unjustifiably frustrate the benefit of s116 of the Act, which permitted an action against the Nominal Defendant where the person was injured as the result of an uninsured vehicle. Millhouse J said at p258, that the intention of the Act, specifically s116, was to give a remedy to a person run over in a public place by an uninsured motor vehicle. Cox J agreed. It is clear that the consideration which led to this result partly depended upon the purposes of the Act as a whole, and that there is no parallel between the Motor Vehicles Act 1959 (SA) and the Northern Territory legislation.

In Leslie v City of Essendon [1952] VicLawRp 31; [1952] VLR 222, the definition was nearer to the definition I am called upon to consider:

"'Street' includes every highway, road, carriageway, lane, thoroughfare or other public place within the City other than a footway." Smith J, at first instance, had construed "other public place" eiusdem generis. In the Full Court, O'Bryan J agreed, at p224. Sholl J concluded, at 230-31 that "other place" meant "other such place", and indeed, "other such place of passage." Coppel A-J agreed with Smith J at p240. An examination of the reasoning in that case shows that the conclusion reached depended upon a consideration of the provisions of the Local Government Act , 1928 (Vic), as a whole.

I think that the question is whether it would promote the purposes of the Motor Accidents (Compensation) Act , to give the word "place" a meaning construed eiusdem generis. This would exclude many public places, such as the public areas of this Court, for instance. If someone in such a place were injured by a motor vehicle, it would be most unusual, to say the least, to contemplate that an action for damages in negligence at common law would not normally lie for non-residents.

If the vehicle happened to be registered in the Territory (or insured under a third party policy in another State) it would still be an "accident" as defined and compensation benefits would be payable to a resident of the Territory (s7); and see the definition of "accident", placitum (ii). The fact that the definition of "accident" in s4 specifically refers to "any place in the Territory, other than a public street" lends some support for the conclusion that the intention was not to restrict the meaning of "place". If a restricted meaning was given it would lead to anomalies in at least two situations. First, s40A(1), which provides a remedy to non-residents in the case of uninsured vehicles, would not apply to a person injured in such a place. Secondly, if the identity of the vehicle could not be established, there would be no remedy under s40(3). This leads me to conclude that the eiusdem generis rule does not apply. If the place is open to or used by the public as a matter of fact the place is within the definition. I therefore accept Mr Walsh Q.C.'s submission. If I am wrong in this conclusion I think the track would be a "place" even if that word was construed eiusdem generis, in that the track, although barely visible in the parts nearest the gate was nevertheless distinguishable enough to be recognised as a place with defined boundaries upon which people or vehicles could pass.

Next, if I have understood Mr Walsh Q.C.'s submission correctly, there is no real distinction to be drawn between streets or places which are open to the public, and streets or places which are used by the public, (except in one sense to which I will come). In Schubert v Lee , supra, at 592 the High Court said:

"The words "open to or used by the public" are apt to describe a factual condition consisting in any real use of the place by the public as the public

• as distinct from use by licence of a particular person or only casual or occasional use. It may be necessary to distinguish places open to members of the public as such from places left open by the owner but obviously intended only for the use of a particular description of person, for example, visitors to his shop or premises." Thus a place will not be open to the public as the public if the owner allows persons of only a particular description or special class to use the land. I accept Mr Walsh Q.C.'s submission that the evidence establishes that, at the time of the accident, there was no restriction of any kind placed by the owner of the land which limited access only to a particular description or class of persons.

In Mr Walsh Q.C.'s submission, that is sufficient; and he relied in support upon the observations of O'Leary CJ in Chellingworth v Territory Insurance Office (1993-94) 29 NTR 15 at 19-20, where his Honour made a useful summary of the relevant legal principles.

I do not accept that submission. O'Leary CJ in Chellingworth at 24 ultimately applied the tests he enunciated in this way:

"It was not land to which the public had access as of common right. It was Commonwealth land under the immediate control of the Air Force. Leaving aside altogether whether such use was permitted or allowed or at least tolerated by the Air Force, I do not think it can be said, in any event, that that particular road was used by the public generally, or that there was any real use of it by the public." If Mr Walsh Q.C.'s submission were correct, his Honour should also have considered whether the use was permitted, allowed or tolerated, and if so, his Honour would have decided that case differently. The evidence in this case supports no more than that such use as was made if it fell within that description. I consider that the case at bar involves the same question as formulated by O'Leary CJ, and that this approach is supported by the passage in Schubert v Lee , supra, at 592 to which I have referred. Thus the question I have to decide boils down to this

• was the use actually made of the land in question (i.e. the small area of land owned by the Council to the east of the gate barrier and the track on which the plaintiff was riding) used in any real sense by the public as the public, or was such use as was made of it casual or occasional? I agree with O'Leary J in Chellingworth , that I do not have to consider anywhere else - it is the place where the present accident occurred in the sense previously discussed which must be considered.

Having regard to those conclusions, I do not consider that the plaintiff has established that the material he now wishes to rely upon is "so material that the interests of justice require it"; or that "the evidence if believed would probably affect the result": see Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 at 89; Murray v Figge (1974) 4 ALR 612 at 613-14. However, I think those tests are too narrow: see Smith v New South Wales Bar Association (No. 2) [1992] HCA 36; (1992) 176 CLR 256 at 266-7; Londish and Others v Gulf Pacific Pty Limited [1993] FCA 470; (1993) 45 FCR 128 at 139. In a civil case where the hearing is complete, the primary consideration is whether, assuming a satisfactory reason is advanced as to why the evidence was not called at the hearing, there would be embarrassment or prejudice to the other side. The reason given by Mr Riley Q.C. is that he only realised the positive significance of this evidence when I raised it after judgment had been reserved. That is a sufficient reason, and as there is no embarrassment or prejudice to the defendants, I propose to allow the evidence in. It establishes that no part of the land in question was ever opened as a road pursuant to the Control of Roads Act . It also establishes that Verburg Court including the part of Verburg Court to the east of the gate fence was a road reserved or left as a road in a subdivision of Crown land in 1966. This part of Verburg Court is therefore a road for the purposes of the definition of "road" in s5(1) of the Control of Roads Act . It was, as Mr Riley Q.C. submitted, a road on paper. But that in my opinion does not assist me in deciding whether it was a "public street" as defined in the Motor Vehicles Act .

On the facts of this case, none of the land in question was used except to gain access to the Crown land. I have already made some preliminary findings about the limited use made of the relevant land in paragraph 4 above. It is now necessary to consider that evidence in more detail. The plaintiff said that he had seen a Telecom vehicle use the land in question, a fire truck use it on one occasion, and a four wheel drive vehicle owned by the father of a friend use it on one occasion to "see what we were doing". He himself used it over a period of 3 years or so on his motorcycle between 2 to 4 times a week. Sometimes he went with friends. The most number of motorcycles he ever saw on the BMX track at the one time was 3 or 4. He said that he saw people walking their dogs, and jogging on the land but they went past the track rather than on the track.

The plaintiff's brother, Shane McDonnell also used the track regularly, and he saw the plaintiff and his friends use it. Apart from that he said there were occasionally other people in the area on pushbikes, but it is not clear whether he meant the track, the Crown land generally, or the BMX track. Although the evidence is vague, it is reasonable to suppose that there were many other points of entry and exit from the Crown land to pedestrians, cyclists or motorcycles other than via Verburg Court, given the size of the area and its proximity to other streets (see Ext D1). He also had seen Telecom vehicles, and a fire truck putting out a grass fire and people walking their dogs "in the area", by which I infer he meant the Crown land generally. The evidence of Darren Taylor was that he also had a motorcycle which he rode on the land in question in order to use the BMX track, as well as other areas of the Crown land. He also saw children with pushbikes and teenagers with motorbikes and people walking their dogs, but it is clear that he was talking generally about the Crown land and the BMX track. He said he used to access the BMX track through the gate barrier, but sometimes he accessed the land on his bicycle at another point nearby. He said that including himself and the plaintiff, there could be as many as three or four motorcyclists who used the track through the gate barrier. He said also, that sometimes there could be children on bikes on the Crown land; as he put it: "it's a big piece of land".

In my opinion, the evidence does not establish that there was any use of the track by the public as a thoroughfare. A "thoroughfare" is a path or road forming a route between two roads or streets or places and open at both ends in the sense that it does not include a cul-de-sac or dead end: see Oxford English Dictionary; Elizabeth Valley Pty Ltd v Fordham (1970) 16 FLR 459 at 462. There is some evidence that the plaintiff's brother used part of the track as a short-cut to Tiger Brennan Drive, but I am unable to find that the track continued after it reached the BMX track. In any event, even if it did, so that the track might be considered a thoroughfare, there is no evidence of any use of the track as such as a thoroughfare by the public, apart from this casual use by the plaintiff's brother.

There is evidence that the track was used by a very small number of persons to gain access to the BMX track. Apart from this use, there is the very occasional use by Telecom and the fire brigade, and perhaps the odd cyclist pedestrian or jogger every now and then. I do not consider that use by the fire brigade or by Telecom was use by the public as the public. This essentially leaves the small number of children and youths who rode their bicycles or motorbikes on the track to gain access to the BMX track. Leaving aside whether this use was permitted, allowed or tolerated by the Territory, I do not consider that that use can be said to be a real use by the public as the public. The use made of it was by a small number of members of the public and, apart from perhaps the odd pedestrian or jogger, was only by particular members of it, who used it to gain access to the BMX track for sporting purposes. It appears further, that at most, only three or four people used the track to ride motorcycles on it, and this, mostly at weekends, although during the week as well, although not every day. Accordingly, I do not consider that the track and the land to the east of the gate barrier was a public street, as defined, and if the burden of proof rested upon the plaintiff, I consider he has discharged it. The plaintiff is therefore not precluded by s5 of the Act from recovering damages at common law.

7. Did the Council owe a duty of care to the plaintiff?

The Council admitted that the land upon which the fence and gate was erected was at all relevant times in its care and control. It was the Council which erected the fence and the gate. The Council knew that the gate was being used by motorcyclists to access the BMX track which it had constructed. It also knew that Telecom employees used the gate to access the land. The risks of injury to anyone who used the gate to access the Crown land by a motorcycle or other vehicle, given that the gate consisted of a single pole across the fence and was difficult to see when closed, was reasonably foreseeable. So far as the end of Verburg Court was concerned, the plaintiff was not a trespasser; and nor was it suggested that he was a trespasser vis-a-vis the Crown land. It is clear that the Council was the occupier of the land upon which it had erected the gate and the fence. In this case the Council in fact had sole control over that land. In those circumstances I am satisfied that it owed a duty of care to the plaintiff: see The Northern Territory of Australia and Katherine Town Council v Shoesmith (1996) 5 NTLR 155 at 163-165.

8. Did the Territory owe a duty of care to the plaintiff?

There is no evidence that the Territory was an occupier of any part of Verburg Court. If the Territory owed a duty of care to the plaintiff, prima facie it could only have done so as the occupier of the Crown land, as there was otherwise no apparent relationship of proximity. Mr Anderson Q.C. submitted that in its capacity as the owner of the land, the Territory owed to the plaintiff a duty of care both as the occupier of the Crown land and on a broader basis, if not as an occupier, as the owner of the land. Whilst a duty of care can arise concurrently with or independently of a duty arising by virtue of the relationship of occupier of land to a person on the land ( Australian Safeways Stores Pty Ltd v Zaluzna (1986-7) 162 CLR 479), I am unable to accept that mere ownership of the Crown land is by itself enough to create a relationship of proximity in the Territory. However that is not to say that, occupancy aside, there can never be a relationship of proximity between the owner of land and someone who is upon the land. In Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 146 ALR 572, a concession was made by counsel for a landlord that it owed a duty of care to its tenant, notwithstanding the decision of the House of Lords in Cavalier v Pope [1906] UKHL 1; [1906] AC 428, which had held that no duty of care arose to persons who suffered injury on the premises by reason of the landlord's failure to keep the premises in repair. Counsel for the appellant conceded that the position was as described by King CJ in Parker v Housing Trust (1986) 41 SASR 493 at 516-17:

"I am satisfied that the supposed rule, for which Cavalier v Pope is regarded as authority, that a lessor is not under a duty of care to persons who may suffer injury on the demised premises by reason of the lessor's failure to comply with a covenant with the lessee to effect repairs or to keep the premises in repair, is inconsistent in principle with the modern doctrine of liability for negligence as it has developed since Donoghue v Stevenson . That being so, I do not think that this court would be justified in following the decision of the House of Lords, thereby imposing on the parties a result which the court would consider to be incorrect. I would therefore hold that there is no rule of law precluding the existence of a duty of care in the lessor if on the ordinary principles of the law of negligence the facts are such as to give rise to such a duty." Counsel's concession was described by Dawson J as "properly made having regard to the relationship between the appellant [landlord] and the respondent" [9 year old daughter of the tenants]; see also Brennan CJ at 587; Gaudron J at 601-2. The other members of the Court decided the appeal on the assumption that the concession was rightly made. Of course, at the time of letting the property, the landlord was also the occupier, and had the power of control over the premises at that stage. This power was regarded by Brennan CJ as the source of the liability in the landlord: see p587.

"The duty does not extend to defects in the premises that are discoverable only after the landlord parts with possession." Gaudron J was of a similar view: see p603. The Chief Justice and Gaudron J were both of the view that the relationship of landlord and tenant, having regard to the control exercised by the landlord at the time of entry into the lease, gave rise to a duty on the part of the landlord to remedy defects discoverable on inspection. Dawson, Gummow and Kirby JJ rejected this view. Toohey and McHugh JJ held that, because the landlord undertook to have the fault repaired and the plaintiff relied upon that undertaking as well as other factors, a non-delegable duty of care arose. All five of the other members of the Court rejected this view. Nevertheless a majority (Brennan CJ, Gaudron, Toohey and McHugh JJ) held that the plaintiff was entitled to succeed. The consequence of that case is that there is no clear basis upon which the question of the extent of the duty and breach of duty can be distilled. Nevertheless, it would seem that the element of control was accepted by all members of the majority as basic to their decision (see also Toohey J at 598; McHugh J at 610).

In Wilmot v State of South Australia (1993) 62 SASR 562, the plaintiff sued the defendant in respect of injuries incurred whilst trail-bike riding over unalienated Crown land. In Shoesmith , supra, at 164, I observed that in that case:

"... the South Australian Full Court appears to have held that the Crown owed no duty of care where the land was unalienated Crown land, the Crown was no under a duty to manage and control the land and had not assumed this function, the respondent had not entered the land as of common right or as a result of any invitation or inducement to the respondent, the relevant risk was self-evident, and not created by the Crown. Nevertheless the Court treated the Crown as the occupier of the land. An application for leave to appeal to the High Court was dismissed.

Duggan J at 575 concluded that there was no proximity of relationship. Debelle J at 581 concluded that the Crown owed no duty of care to the respondent. Cox J at 569 concluded that "the duty of care to any trail bike rider ... was a modest one"; and at 571 there was no "relevant" duty of care. It is difficult to reconcile these conclusions with the passages in Deane J's judgment in Hackshaw v Shaw (supra) and in the majority judgment in Australia Safeway Stores Pty Ltd v Zaluzna (supra)". In the present case, Ms Anderson Q.C. submitted that the Territory owed a duty of care to the plaintiff for the following reasons. First it was submitted that the Territory knew of, and consented to, the erection of the BMX track on the land. The evidence establishes that the existence of the erection of the bike track was known to Mr Marshall Perron, in his capacity as Member for Fannie Bay (see Ext D1L) but that does not prove anything. Even if Mr Perron was then a Minister of the Northern Territory government, he appears to have been consulted in his capacity as the local member. However, at a later time, there is evidence which I accept that the Territory became aware of the existence of the bike track. Indeed, the Territory, through its servants and agents, was engaged in the reconstruction of the track in or about 1983 (see Ext P4 and the evidence of Mr EJ Webber). I find therefore that at least from 1983 onwards the Territory knew of the existence of the track and that it was intended to be used by local children as a place for riding BMX-style bicycles. But the evidence must go further than this; to establish proximity it must at least be shown that the Territory knew of the gate and the condition it was in.

Assuming that, as the owner of the Crown land, the Northern Territory exercised control over the land, so as to give rise to a relationship of proximity between it and the plaintiff, there is no evidence that the Territory was aware of the potential hazard created by the gate barrier. There is evidence that, in 1985 the Council told the Northern Territory Police that a barrier was to be erected (but not a gate) (Ext P5) and that the Power and Water Authority was told at one stage that a gate barrier had been erected which was fitted with a locking device; and that the gate barrier had been removed (Ext P4, answers 24 and 29). There is nothing to show that the Northern Territory knew that the gate barrier had been replaced by the Council in 1986. In these circumstances I do not consider that it has been shown that the Northern Territory had a relationship of proximity to the plaintiff and therefore owed any duty of care to the plaintiff. The action against the Northern Territory by the plaintiff, and the claim for contribution by the Council must therefore be dismissed.

9. Was the Council in breach of its duty of care to the plaintiff?

The test to be applied involves two steps. First, would a reasonable man in the Council's position have foreseen that the erection of the gate, and the leaving of the gate in the condition in which it was left, would involve a risk of injury to the plaintiff or to a class of persons, including the plaintiff. A risk is reasonably foreseeable if it is not far-fetched or fanciful: see Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40 at 47-8 per Mason J.

I have already answered this question in the affirmative. If is clear that the Council knew that motorcyclists used the gate to access the land, that the gate was left in an unlocked condition, and that anyone could slide the pole across. It is not far-fetched or fanciful to imagine that the pole could be slid across after a motorcyclist had entered the land, and that it would be hard to see, especially upon leaving the land.

The second step requires me to consider what the Council ought reasonably to have done by way of response to the risk. This involves a consideration of the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alternative action and any other relevant matters: Wyong Shire Council v Shirt, supra, at 47-8; Romeo v Conservation Commission of the Northern Territory [1995] NTCA 126; (1995) 123 FLR 84 at 105-107; The Northern Territory of Australia and Ors v Shoesmith (1996) 5 NTLR 155 at 165-6. I do not consider the magnitude of the risk was minimal, particularly as the Council must have known that there were no warning signs on the pole which formed the gate, the gate was at a height likely to unseat a motorcyclist, the gate was not easy to see in its closed position, given its shape and colour against the background of the bitumen road, and the fact that the Council knew that motorcyclists used the area. It is relevant to take into account that the plaintiff was not a trespasser. Indeed, under the Control of Roads Act , s59, it was an offence to obstruct the public use of a "road" as therein defined. The evidence of the civil engineer, Mr Gersekowski, is that steps could easily have been taken to make the gate more visible in its closed position, either by painting the pole and attaching a warning sign to it to make it more visibly prominent (which would necessitate changing the mechanisms of opening and closing the gate), or by changing the style of gate. The costs involved, depending on which approach is used, is between $100 to $1000.

I consider that if either approach suggested by Mr Gersekowski had been adopted, the injuries to the plaintiff in this case would probably have not occurred. It is clear that the response to the risk suggested by Mr Gersekowski involved little difficulty or expense. It is relevant also that it was the Council who, by creating the BMX track, encouraged the plaintiff and others like him to use the land to access the track. In conclusion I consider that the plaintiff has established that the Council breached its duty of care towards the plaintiff.

The primary submission of Mr Anderson Q.C. was that the plaintiff was not only negligent, but that he was so negligent that he was the author of his own injuries.

Mr Anderson Q.C. submitted that the plaintiff knew or ought to have known that the pole was sometimes in the closed position. The plaintiff's evidence was that when he first became aware of the BMX track, the end of the street was completely fenced off, except for a gap near the school fence which was wide enough for him to squeeze through on a BMX bicycle. At a later time, a swing gate was installed in roughly the same location as the pipe gate. This gate was constructed from two pieces of piping, one of which was erected horizontally to the ground, and the other of which was attached to the former at an angle of 45 o . This gate was kept padlocked. Subsequently, approximately 12 months before the accident, that gate was replaced by the steel bar. The bar was in the shut position for about a month, but thereafter, to his knowledge, it remained in the open position at all times; indeed he said that he thought that the bar had been permanently removed. In an affidavit sworn 10/9/93 he said that "for a period of to the best of my memory 12 months before the date of my accident I did not see and have no knowledge of a gate or bar or obstruction in place between Verburg Court and the vacant land. The first I remember about seeking the bar ... was as I hit it in my accident..." In cross-examination he conceded he had not inspected the gate to see if the bar had been removed or had been merely slid across into the fully open position. He claimed to have no memory of the accident itself or of seeing the bar just before the accident occurred.

The plaintiff's brother Shane McDonnell said in evidence in chief and in cross-examination that he had never seen the bar in the closed position before the accident, and indeed that he did not even know that it existed. Notwithstanding that he had said, in a signed statement to the police made shortly after the accident, that he had "only ever seen it closed once, and that was several weeks ago," he maintained he had never seen it closed, and could offer no explanation as to why he said otherwise to the police. His evidence was that the bar was not there when he and the plaintiff entered the land, and, as they were leaving the land, he was following behind the plaintiff. As he straightened up around the bend in the track approaching the gate, he saw the plaintiff lying flat on his back on the roadway of Verburg Court. He dropped his bike to run to him, and ran straight into the pole across the gateway which struck him in the stomach. There is no mention of this in his statement to police, in which he said "I got off my bike and ran towards him and I then realised that there was a metal bar across the gap ..." He could offer no explanation as to why he did not ride through the gap, if he had not seen the bar, and park his bike nearer to where the plaintiff was lying. I think it more likely that he saw the bar at the last minute, and this is why he dropped his bike before passing through the gate. He said that he had difficulty seeing ahead of him because the sun was in his eyes.

Mr Leishman, who lived in Verburg Court at the time, said that in the year or so before the accident, the pole barrier was "frequently up and down". He was not challenged in cross-examination. Mr Fisher, another resident, thought the gate was "mainly closed", but he appeared to me to have trouble recollecting the true situation. Mr Lyne, another resident, gave evidence, but his memory was poor and I did not find his evidence helpful. Mr Taylor, said that the pole was "not normally there" in the months up to the accident, but I think he too had difficulty really remembering.

I consider that on the whole of the evidence, to the plaintiff's knowledge, the pole was not in the closed position in the months prior to the accident. I accept Mr Leisman's evidence that the pole was frequently closed over the whole period but I am not prepared to infer from his evidence that the plaintiff must have been aware of this in the months immediately prior to the accident. I accept the evidence of the plaintiff and his brother that it was not open on the day of the accident prior to them entering the land for the last time, and that some person unknown closed the gate without their knowledge before their return.

It is obvious that the plaintiff did not see the pole either until it was too late to avoid the pole, or at all. I do not think it matters which. I accept the evidence of Constable Herold that the pole was clearly visible to him at a point 35.7 metres along the track. Thereafter it was obscured by shrubbery until a point 53.7 metres along the track when it disappeared from view. But, as Mr Riley Q.C. submitted, Constable Herold knew the pole was there and made a conscious effort to look for it. I do not accept that the sun was so low in the sky as to have been a major factor in why the pole was hard to see, but I consider the glare from off the bitumen surface may have played a part.

The pole was not clearly visible to one not expecting it to be there because of its grey colour, size and shape, and because of the dark bitumen road surface behind it and any glare off the road surface.

The plaintiff claims to have no memory of the events leading up to the accident. In view of the inconsistencies between his evidence and his answers to interrogatories and other previous statements, (including the affidavit of 10/9/93) the account he gave to Dr Marshall (see Ext D2C) and the evidence which suggests no loss of consciousness, or at least no significant loss of consciousness, I have some difficulty in accepting this. However rejection of this part of his evidence does not mean that I can infer, for example, as was suggested to the plaintiff in cross-examination, he had been driving his motorcycle with his head turned around in the direction of his brother who was following some distance behind him. Although I find that the pole was hard to see, I consider that, had he been paying proper attention to his riding, and to the gate ahead, he ought to have been slowing down ready to dismount his motorcycle and he would have seen the pole and have been able to stop to avoid colliding with it. He held no licence and his motorcycle was unregistered; he could not lawfully have ridden his motorcycle on Verburg Court, as he well knew. Notwithstanding his parent's instructions to the contrary, his usual practice was to ride the bike home, and that is what I find he intended to do. I find that he was probably travelling at about somewhere between 40-60 kph at the time of the impact. I am unable to be more precise than this on the evidence. The bike's top speed was about 60 kph, and the plaintiff said his usual practice was to ride through the gate at about 40 kph. It is unlikely from the distortion caused to the bar by the impact that he was travelling at a slow speed.

I do not accept Mr Anderson Q.C.'s submission that the plaintiff's negligence was the sole cause of the accident. Clearly the lack of visibility of the pole played a significant part. On the other hand I do not accept Mr Riley Q.C.'s submission that the plaintiff was not guilty of contributory negligence. I accept that as the plaintiff was 14 years of age at the time, albeit a few weeks away from his 15th birthday, the standard of care expected of him is "that expected of an ordinary child of the same age, intelligence and experience", and although there is some authority to suggest that subjective factors are not to be wholly excluded: see Giner v Public Trustee and Another (1991) 105 FLR 410 at 417-18 and the authorities there cited. In this case the plaintiff was an experienced rider - far more so than the average 14-15 year old. I consider that the standard expected of the average 14-15 year old experienced rider of an unregistered bike, and without a licence, would expect him to have slowed down as he approached the gate and to have kept a proper lookout ahead of him, ready to dismount before he entered Verburg Court on the other side of the gate. I do not think that the average 14-15 year old should have inspected the gate to see if it could be closed, to be aware that someone might have closed the gate after he entered through it, and that it might be hard to see if that occurred. Accordingly, in my opinion the plaintiff was guilty of contributory negligence. I consider that the major responsibility must rest with the first defendant because it created the hazard, it created the BMX track and it knew that the land and the track was used by young people riding motorcycles. Some allowance must also be made for the impulsiveness and immaturity of youth. In all the circumstances I consider that it is just to apportion liability between the plaintiff and the first defendant 30%/70%.

1. That there be interlocutory judgment in favour of the plaintiff against the first defendant for 70% of the plaintiff's damages to be assessed.

2. That the plaintiff's claim against the third defendant be dismissed, and that there be no contribution as between the defendants.

3. The question of costs be reserved until the final determination of the plaintiff's claim against the first defendant.