Price v State of New South Wales

Court of Appeal (NSW)|2011-08-24|Before: Allsop P, Beazley JA, Giles JA

Judgment 1ALLSOP P: In early January 2006, the appellant was an inmate at Parramatta Correctional Centre (PCC). On 12 January 2006, he was accidentally hit in the eye by a tennis ball while sitting on a seat 7.8 metres behind the baseline of a tennis court. He was seated roughly behind the "tramtrack" on one side of the court, though slightly towards the centre of the court. He suffered a detached retina and (on the medical evidence accepted by the primary judge) a substantial, but not total, loss of vision to his right eye. 2The incident occurred at about 2 pm or a little thereafter. There was some dispute about the precise time, but the resolution of that dispute is not relevant to the disposition of the appeal. 3A game of tennis was being played by four inmates. They had been playing for some time (up to an hour) while Mr Price was seated on the bench behind the baseline. Precisely how the game was being played was a matter of some controversy at the trial (to which I will return). What can be said, at least, is that one of the players appeared to be of significant proficiency and the other three, though not of his standard, were of sufficient skill so as to enable a game to be played properly, accurately and with skill. Mr Price had been following the game, but his attention had apparently waned. He was hit in the eye, knocking his head back against the wall behind the seat. Although there was no evidence of the stroke that caused the ball to go in Mr Price's direction, the evidence of the prison officer, Ms Andrews, was that there had been no horseplay or aggression in how the game had been conducted. There was no suggestion that the injury occurred because of any deliberate act by one of the players. It appears to have been an unfortunate accident. 4The issue was, and is, whether the respondent (the State) is responsible for Mr Price's injuries because of negligence. The primary judge said, no; he ordered that there be verdict and judgment for the defendant, with costs. 5The pleadings were succinct. The defendant admitted that it owed a duty of care to Mr Price, but relied on s 5F of the Civil Liability Act 2002 (NSW) to deny any duty to warn Mr Price of the risk of injury because it was said to be obvious. The obvious character of the risk was illuminated in the particulars to the pleading of contributory negligence (which the primary judge contingently assessed at 30 per cent), as follows: "(a) Failure to keep a proper lookout for his own safety; (b) Failure to avoid an obvious risk of injury by sitting on a seat which was in line with where tennis balls were being served and received in a game of tennis." Thus, in the pleading, not only did the defendant accept that Mr Price was exposed to a risk (as recognised by the primary judge at [4] of his reasons), but also, at least in the pleaded case, it was said to be obvious and to require Mr Price to keep a lookout so as to exercise care on his own behalf to avoid injury. There was an issue at trial and on appeal, to which I will return, as to whether the respondent abandoned particular (b) above during the provision of pre-trial particulars. 6Central to the rejection of the plaintiff's case was the finding at [73] of the reasons that the possibility of the risk of serious injury was remote.

Further background facts 7Mr Price was 41 years old at the time of the injury. On 12 December 2005 he had been sentenced to a term of imprisonment of three months for some driving offences and he was also remanded in custody on an assault charge. Having appealed against his sentence, he was transferred to PCC which is a medium short-term remand and transient centre detaining unsentenced, and certain other categories of, inmates. His appeal was successful, but he was kept on remand at PCC, pending his trial on the assault charge, where he was on 12 January 2006 at the time of accident. 8The tennis court was in a square, bounded on three sides by wings of prisoner accommodation, and an area called "Phone Alley" on the fourth side. The inmates had had lunch and what was called the afternoon "let-go" had commenced (from about 12.30 pm). During this period, the inmates were required to leave their cells. They could engage in activities or spend time in the square or on the adjacent oval. There was a dispute at trial (irrelevant to the disposition of the appeal) as to whether the oval was open or closed on the day in question. There was seating around the square described by the primary judge at [20] of his reasons: "There were two types of seating around the Square: 18 free-standing bench seats ... on which three inmates could comfortably sit; and some benches associated with 3 wooden barbeque-type tables (each table had a long bench on either side on which four inmates could sit). Some of the free-standing bench seating was behind the baselines at each end of the tennis court markings ... There was therefore seating of some kind (apart from the ground) for approximately 78 inmates provided for on the Square." 9The playing of tennis on the marked court was a privilege (reasons [21]). Net and supporting posts would be put in place for the game. No fencing or netting was erected or installed around the court. 10The square was supervised by two officers called "Rovers". Only one of these officers, Ms Andrews, was called. Other staff had duties as "Activities Officers", but it would appear they were not on duty on the day. None was called in evidence. The responsibilities of the Activities Officers included supervision of sporting events. It can be accepted that this involved an assessment that the activities undertaken were safe: see for example Blue Book Vol 1 p 129 I; Mr Corcoran, the respondent's correctional centre expert at Black Book Vol 2 p 609 H-K; and Mr Deegan, the appellant's correctional centre expert at Black Book Vol 1 pp 296-297. The duties of Rovers included "Periodically check oval and activities when in use": Blue Book Vol 2 p 714. In the absence of any Activities Officers being on duty, it can be accepted that the Rovers had the obligation to assess whether activities were being undertaken safely: see the statement of Ms Andrews at Blue Book Vol 1 p 236 G-O. The acceptance of the State of a duty of care is to be seen in that light.

The conduct of the trial and the approach of the primary judge 11An examination of the reasons of the primary judge will reveal issues that are irrelevant to the disposition of the appeal and facilitate the focusing upon the core issues in the resolution of the appeal: whether or not the primary judge erred in his evaluation of the risk and the appropriate response to it by reference to the terms and requirements of the Civil Liability Act , s 5B.

The question of credit 12The primary judge saw it as necessary to decide upon the reliability and credit of the two main lay witnesses, Mr Price and Ms Andrews. The primary judge, for the reasons he gave at [31]-[35], accepted as both truthful and reliable the evidence of Ms Andrews and, in contradistinction, found that Mr Price's evidence had to be treated cautiously such that he would not accept it on any matter of controversy unless independently corroborated. 13A separate ground of appeal was prosecuted challenging these credit findings. For reasons which appear later this ground of appeal should be rejected. Thus, I will proceed to analyse the primary judge's reasons on the basis that his findings of credit about these two witnesses were correct.

The number of inmates on the square 14Significant energy at the trial was devoted to ascertaining how many inmates there were on the square on the afternoon in question. The case sought to be made by the plaintiff/appellant was that the adjacent oval nearby was closed and that all inmates who were otherwise not occupied were crowded into the square. The purpose of this enquiry was said to be that if there were a significant number of persons seated behind the baseline of the tennis court while the game was being played there were a significant number of people exposed to the relevant risk and that there was nowhere else for Mr Price to sit. 15As was discussed during the course of the appeal, this issue is unlikely to be of relevant determining significance. If the risk of injury was sufficiently serious to warrant requiring Mr Price to move, that was the case whether there was one person or more than one person in the area where Mr Price was seated. Perhaps, the likelihood of someone being struck was greater, but the likelihood of Mr Price being struck was not. 16Further, it may be that in such a circumstance the appropriate response would have been to halt the tennis game. This may have led to different considerations of appropriate response under the Civil Liability Act , s 5B. In any event the matter was resolved by his Honour at [36]-[52]. His Honour there found that the likely number of inmates on the square at the time of the injury to the plaintiff was in the order of 52 to 62: [52] of the reasons. The consequence of this was that there was no crowding on the seats where Mr Price was sitting. A consequence of this was that if it was appropriate in the discharge of the defendant's duty of care to request or to require Mr Price to move, there was space elsewhere in the square other than directly behind the baseline where he could sit. 17The cross-examination on this topic was important to the primary judge's acceptance of Ms Andrews. At [51] of the reasons, (after setting out at some length sections of the cross-examination on the topic of the number of inmates in the square) the primary judge made some comments that arose from the cross-examination that affected his view as to credit. The cross-examination was extended, occupying over a day. The questions were lengthy and complex, being asked rapidly and strongly. The witness, Ms Andrews, was cross-examined with vigour and her response was such as to impress the primary judge in her manner of giving evidence.

The length of time the plaintiff was seated on the bench before being struck 18Once again this matter was not central to the disposition of the appeal. Mr Price's evidence was that the tennis was not being played when he initially sat down on the seat. It commenced sometime later and had been proceeding for ten minutes before he was struck. Ms Andrews said that Mr Price had been sitting on the bench at 12.35 pm shortly after the "let-go" commenced and that the tennis commenced at about 1 pm and that he was struck at about 2 pm. The only relevance of the preference for Ms Andrews' evidence by the primary judge was that he found at ([56] of the reasons) that Mr Price had been on the bench watching the tennis game for about one hour before his injury and in so doing he had "plenty of opportunity to observe the skill and strength of the performance of the players."

The manner in which the tennis game was played 19This was an important issue. It was dealt with by the primary judge at [57]-[64] of the reasons. Again, the resolution of the matter turned on preferring Ms Andrews; and, once again, the manner of her cross-examination and her responses in cross-examination were important factors in the primary judge accepting Ms Andrews as a witness of truth and reliability. 20The plaintiff had given evidence that the most proficient player was "a big Islander" who was very good and hit the ball "Pretty strong" (see [58] of the reasons). The standard of the other players, Mr Price said, was "Average I suppose, normal". He said that he was not concerned about being hit by a tennis ball. He said that the serves were being returned and he did not notice any misses. 21Ms Andrews gave evidence in chief by a statement on the same topic. She referred to "a large Aboriginal inmate" who appeared to have some ability "as though he could be a professional player". She said in chief the following at para 16 of her statement: "As part of the supervision of inmates we take action if an inmate becomes involved in an activity which is dangerous or disruptive such as kicking a ball etc. In this case this was a game of tennis between four inmates and was being conducted in a fair and reasonable manner by the participants. There was nothing reckless in what they were doing. I again state that this large Aboriginal person was a strong player in his overall game including serving and returns." 22The primary judge then set out over seven pages of his reasons (at [62]) relevant extracts from Ms Andrews' cross-examination on the topic. She was pressed repeatedly by the cross-examiner to the effect that she saw that the Aboriginal or Islander player was playing "with force and speed". I do not propose to set all this out again. It can be read at pages 27-34 of his Honour's reasons. At one point early in the extracts, in answer to a question whether the indigenous player was playing with force or speed, Ms Andrews replied "Accurately". The cross-examiner replied immediately "And with force and with speed?" And the answer is recorded as "Mm". Thereafter there was a continual exchange in which the cross-examiner sought to extract a concession of force and speed, such concession never being given. In the cross-examination Ms Andrews said the following: "If I'd have thought that tennis players were playing aggressively or you know, if the ball was going wildly around then I would have you know, stopped it and I would have said to the inmates, 'You'd better move from there, this is a bit risky', you know, but the game was being played well. I'm not saying that it was a - you know, he looked like a professional player but he didn't like - you know there wasn't anybody playing so aggressively that I thought anybody was going to be hit." Shortly thereafter, in the direct engagement between cross-examiner and witness, the cross-examiner put that the inmate was playing with force and power, the witness responded "With ability"; the cross-examiner responded "and with force"; and the witness responded "Yes, but he had ability. No, you said force, I didn't say ..." It is clear from a reading of all the cross-examination of Ms Andrews that she did not accept that the indigenous player was playing with force or speed. She did however say ultimately: "Well - it depends on how - what do you mean by force. Was it aggressive force or was it with skill? And I'm saying it's with skill, and you're saying it's aggressive." She further described the man's playing as follows: "Well, I could say that the inmates played hard with speed with their lollipops. My point in this is that he was playing profectly (as said). I'm not saying that he was a forceful player or he was hitting the ball hard. His technical ability stood out in that every time he served the ball it would go in the right place and he knew how to play and he did the - he put himself in the position where he should be without the other people having to say, move over here, do it this way, come here or its your serve, or that sort of thing." 23The learned primary judge made the following finding at [64] of the reasons: "Accepting the evidence of Ms Andrews I find that the game was being played competently and apparently responsibly. There was nothing in the conduct of the players which required any intervention by the officers - e.g. skylarking (cf T523:5)." 24The finding of the primary judge at [64] can be accepted. It also must be accepted that the description of the play was as recounted by Ms Andrews.

The primary judge's disposition of the plaintiff's liability claim 25There was some complaint on appeal that the primary judge had misconstrued the order in which the various matters were put before him. Nothing turns on this. 26To the extent that the plaintiff's case was based upon on the premise of over-crowding of the square, this was rejected on the basis of his Honour's earlier finding that the oval was open. Given my view on the primary judge's approach to credit, nothing further needs to be said about this part of the claim. 27The plaintiff also complained that even if there were the usual number of inmates on the square (conformable with the findings of fact concerning numbers to which I have referred) the defendant failed to discharge its duty of care in that one of three alternatives should have been adopted, those alternatives being set out at [68] of the reasons, as follows: "(a) should have directed the plaintiff to move; alternatively, (b) netting or fencing should have been available for erection or installation when tennis was being played; and (c) absent that netting or fencing, tennis should not have been permitted even with the usual number of inmates in the Square." 28After referring to the content of the duty in [69], the primary judge rejected the proposition that Ms Andrews should have directed the plaintiff to move as set out in sub-paragraph (a) above for the reasons set out in [70]-[74] which were as follows: "[70] In considering whether the defendant has discharged its duty consideration must be given to section 5B of the Civil Liability Act , including: (a) the probability that harm would occur; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk; and (d) the social utility of the activity that created the risk. [71] Each of these considerations is of course to be answered prospectively and not with the benefit of hindsight - i.e. before the tennis match began, not by reference to what happened to the plaintiff during it (cf Adeels Palace Pty Limited v Moubarak [2009] HCA 48 at [30] and [31]). [72] With this background I shall now turn to the alleged breaches. [73] As to (a), I have concluded that there was no unusual increase in the number of inmates on the Square. There was consequently a number of other benches on which the plaintiff could have sat or he could have sat on the ground. The bench on which the plaintiff was sitting was 8 metres behind the baseline. I found that the tennis match was being played properly. No inmate has been injured as a result of a tennis match before or after the incident involving the plaintiff. I regard the possibility of the risk of serious injury as remote. [74] In these circumstances there has been no breach of common law duty of care by the defendant not directing the plaintiff to move." 29I will deal with the question of the correctness of his Honour's conclusions in respect of the failure to require Mr Price to move in the next section of these reasons. In my view, with respect, his Honour's reasons reflect an inadequate and flawed analysis by reference to the Civil Liability Act , s 5B. 30His Honour also rejected the contention that netting or fencing should have been made available or in their absence tennis should not have been permitted. These were dealt with by his Honour at [75]-[80]. His Honour rejected these matters. Netting could have been installed, but his Honour accepted that it could have posed a potential security risk and that it would have been unreasonable to require the defendant to have placed netting around the court given the nature of the location. His Honour took the view that presence of the netting or screens could have impeded officers moving about the square and the netting could have been used in some manner contrary to the appropriate running of the facility. As to not allowing the tennis, the primary judge made the point that in the correctional facility the inmates are confined to cells for long hours and physical exercise and competitive games can be understood as highly important in the institution. Balancing the very considerable advantages of playing tennis in that context with what he saw as the remote possibility of serious damage it was not unreasonable to permit the activity on the square. 31It is convenient at this point to deal with these alternative grounds on the appeal. They can be dealt with together on the basis of the findings of fact that there were a number of people in the square as found by the primary judge. If the circumstances did not require Ms Andrews to suggest to or require Mr Price to move because the evident risk to him sitting immediately behind the baseline, it can hardly be expected that such precautions as installing netting or stopping the game would have been required. 32I am unable to see any error in the approach of the primary judge to these matters, notwithstanding my views as to the risk of injury (expressed later), on the assumption that there were a number of people in the square as his Honour found. 33This case turns on the reasonableness or not of Ms Andrews' failure to require Mr Price to move from the position he was in while this game of tennis was being played. To this question I now turn.

The question of the duty and its content 34There was no issue about the respondent owing the appellant a duty of care. Its content must, however, be considered. Mr Price was an adult. He took a seat. A game of tennis began. It was played in the manner described by Ms Andrews. 35The custody of Mr Price involved detention and an assumption of control of his person resulting in a duty to exercise reasonable care for his safety during his detention: Howard v Jarvis [1958] HCA 19; 98 CLR 177 at 183 (Dixon CJ, Fullagar J and Taylor J). The relationship is a special one sufficient to include a responsibility to exercise care to prevent harm deliberately and unlawfully inflicted by others: State of New South Wales v Napier [2002] NSWCA 402 at [14]-[21] and cases there cited (Spigelman CJ) and [66]-[83] (Mason P); and see New South Wales v Bujdoso [2005] HCA 76; 227 CLR 1 at 9-10 [32] and 14-15 [45]-[46] (the Court). Critical to the special character for relevant purposes here is the control by the respondent of the appellant and its assumption of responsibility over the appellant. These matters no doubt pervade the whole life and existence of those in prison: most aspects of life, and autonomous existence, are subject to control and direction. These considerations often assume their importance in the responsibility to control the violence of third parties, such as other inmates. These considerations are relevant, however, in recognising the duty no doubt extends to the taking of reasonable care in the exercise of powers of control and direction that exist in order to avoid injury to an inmate. 36Section 5B is in the following terms: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b)the risk was not insignificant, and (c)in the circumstances, a reasonable person in the person's position would have taken those precautions. "(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a)the probability that the harm would occur if care were not taken, (b)the likely seriousness of the harm, (c)the burden of taking precautions to avoid the risk of harm, (d)the social utility of the activity that creates the risk of harm." 37Section 5B has now been discussed in many cases. It has been accepted as a statutory expression of the formulation of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48: see Waverley Council v Ferreira [2005] NSWCA 418 at [45], Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; 77 NSWLR 360 at 397-398 [178]-[179] and Harmer v Hare [2011] NSWCA 229 at [209]-[213]. This involves a contextual and balanced assessment of the reasonable response to a foreseeable risk: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 354 [69]. 38None of these principles was in issue. What was in issue was the adequacy and acceptability of the primary judge's analysis. 39With respect to his Honour, [70]-[74] of his reasons do not reveal the undertaking of the task in s 5B or Shirt . There seems no dispute that there was an obvious danger - it was pleaded by the respondent. This was not, however, a warning case for Div 4 of the Civil Liability Act ; nor was Mr Price engaging in a recreational activity for Div 5. What was obvious was that he may be hit by a tennis ball. He was substantially in line with the direction of the ball being hit. Thus some injury was readily foreseeable. Commonsense would tell anyone that any blow, depending on its force, might be to the limbs, body, head or face. Whilst it might be expected that the probability of truly serious injury might not be high, it could not be said to be remote in the sense of fanciful. Further, injury such as a hit on the face, side of the head or neck or throat might well be significantly more than minor. These are risks that hardly needed expert evidence to illuminate. It was, however, led. Mr Farr-Jones was called by the appellant and Mr Edmondson was called by the respondent. The latter accepted that someone sitting behind the baseline was vulnerable to being hit: Black Book Vol 2 pp 420-421. As to the seriousness of the injury, that depended he said on where you were hit: Black Book Vol 2 p 422. Ms Andrews accepted that a person in the position of the appellant could have been hit: Black Book Vol 2 p 525. His Honour in expressing some doubt about the utility of some of the expert evidence said (at Black Book Vol 1 p 230): "HIS HONOUR: Yes. Well I don't know that I need any expert evidence, you get hit in the eye, there's a risk of injury, but what's the magic in all of this? KENNEDY: Being hit by a tennis ball in any part of your body, your Honour, is a risk of injury -- HIS HONOUR: Well this plaintiff was hit, on his case, with a tennis ball at some force. KENNEDY: Yes. HIS HONOUR: I wouldn't have thought I needed any expert evidence to know that if that happened the eye is likely to be injured. KENNEDY: Exactly, your Honour. Well I would assume that to be so, your Honour. HIS HONOUR: I don't know what the mystery about that is." 40Ms Andrews observed the play. I have already discussed her evidence on this matter. It can be accepted that the game was being played responsibly by all. Ms Andrews refused to say that they were playing aggressively or forcefully. Yet the blow Mr Price received hit him with a degree of force. There was no suggestion that this was an atypical shot or horseplay. No evidence was led of the shot in question. But Ms Andrews' evidence of how the game was being played enables an inference that the force with which he was hit was reflective of how the game was played. 41Ms Andrews in her evidence (set out at [22] above) gave her assessment as to what she would have done if they were playing "aggressively" or if the ball was "going wildly around". She would have moved the inmates, including Mr Price, from behind the court. Rather, she said that there wasn't anyone playing so aggressively that she thought anyone would be hit. 42That was a contemporaneous assessment by Ms Andrews. It was not, however, the basis of the primary judge's reasons, although it may have informed his view that the risk of serious injury was remote because of Ms Andrews' own view that without aggression or the ball going about wildly no one would be hit. 43The difficulty that I have with Ms Andrews' and the primary judge's assessments is that neither is either logical or supported by the straightforward facts or commonsense. As to Ms Andrews' view, it does not follow that no one would be hit unless the game was played aggressively or the ball was "going wildly around". A highly competent player was playing; the other three had sufficient competence to permit a proper game of tennis. Mr Price was in the line of play. He plainly could be hit on the successful passing of any player, whether by serve, passing or other shot. The game necessarily involved the risk of a ball coming in his direction at some speed. A physical injury could plainly occur. As to the primary judge's view, it cannot be said that the risk of serious injury was remote in the sense of fanciful. A ball hitting the nose, teeth, eye, throat, testicles or other parts of the body might cause injury of a not inconsequential, perhaps serious, kind - as indeed it did. Danger of some character was obvious - the respondent so pleaded. I do not see any real basis for the conclusion in [73] of the primary judge's reasons. 44Further, the nature of the risk and the extent of possible injury, depending upon where one was hit, could have been eliminated easily and without cost or other inconvenience by asking or requiring Mr Price and others seated in similar positions to move from behind the court. The evidence was that he would have complied - he had no alternative but to do so. There was no evidence that this would have created a risk of disturbance in the yard. 45In my view, the primary judge erred in his assessment of the risk and of the matters in s 5B. The risk was foreseeable, indeed obvious: s 5B(1)(a) and (b). Precautions as to moving Mr Price were such that a reasonable person would have taken given the degree of risk and absence of improbability of being hit: s 5B(2)(a), the possible seriousness of the harm (depending where one was hit): s 5B(2)(b), the minor burden of the precaution: s 5B(2)(c) and the lack of affectation of the social utility of the game that created the risk while Mr Price was seated where he was: s 5B(2)(d). 46Whether or not the failure of Ms Andrews to take the required step of moving Mr Price and any others in his position was a function of her focusing on questions of security in her position as Rover need not be considered in detail. At one point in her evidence (Black Book Vol 2 pp 526-527) she said that if the inmates chose to sit where they did it was not her job to move them. In her own defence, she said that she saw "no possibility of a risk" (Black Book Vol 2 p 527). 47For the reasons earlier expressed, I do not accept that there was no possibility of risk. The risk was obvious. The question was whether the risk was of a sufficient character (as to probability and possible degree of harm) as to require, for the exercise of due care, that Mr Price and any others behind the court be asked to move. In my view it was. The question of the acceptance of Ms Andrews' evidence 48Detailed submissions were put as to why Mr Price should have been accepted and why Ms Andrews should not have been accepted. All involve a detailed examination of aspects of the evidence of each. None involves any matter of incontrovertible evidence that tells against Ms Andrews' truthfulness. 49It would be fruitless to examine all the matters set out at paras 115-131 of the appellant's written submissions and the oral address. Taken individually and collectively they are inadequate to permit this Court to make a finding contrary to that made by the primary judge with his advantage of seeing the witnesses give their evidence over an extended period of time. 50In any event, I do not see the acceptance of Ms Andrews' evidence as crucial to the disposition of the appeal, except perhaps as concerns contributory negligence.

Contributory negligence 51The primary judge dealt with contributory negligence at [126]-[136] of his reasons. There were two issues. First, the primary judge found that the respondent in pre-trial correspondence effectively withdrew the second of the particulars - that Mr Price failed to avoid an obvious risk by sitting on a seat in line with where tennis balls were being served and received. However, the primary judge concluded that the issue was sufficiently cross-examined upon so as to bring the issue back "into the arena". This last proposition was challenged. 52The particular pre-trial correspondence was set out at [127]-[128] of the reasons: "[127] The solicitors for the plaintiff sought better particulars of that pleading by letter dated 23 June 2009: '...

We note you've alleged that our client failed to keep a proper lookout for his own safety. a please advise precisely what he should have done to look out for his own safety
We note you alleged that our client failed to avoid an obvious risk of injury by sitting on a seat which was in line with where tennis balls were being served and received in a game of tennis. a are you suggesting that he should not have sat in that particular chair? b are you suggesting he should not have sat in any chair which was at either end of the tennis courts?' [128] On 27 August 2009 the solicitor for the defendant provided the following answers: '... 1a. He should have followed the play. 2a. No. 2b. No.'" 53The cross-examination of Mr Price was as to the availability of the oval for him to go to. His evidence was that he had nowhere else to sit. The respondent's case (supported by the evidence of Ms Andrews) was that there were ample places to sit including the oval and that he chose the particular place he did. Mr Price also gave evidence that he was not concerned about being hit. 54In the circumstances, it was open to the primary judge to conclude that there was contributory negligence in Mr Price sitting where he did if he was not going to keep a proper lookout. The two paragraphs of the particulars are related. 55Properly construed and in the context of the debate about seat availability and the evidence that he gave, Mr Price was given ample opportunity to deal with the matters to which the primary judge referred about contributory negligence that were set out at [136] of the reasons: "In my opinion, by having regard to the length of time that the plaintiff was on the seat; the fact that he had been, during most of that time, observing the game; and by having regard to the availability of other seating, I would have found the plaintiff guilty of contributory negligence and in the order of 30%." 56Though only a conditional finding: Tarabay v Leite [2008] NSWCA 259, in my view, the conclusion was not only open, but sensible and correct. The obvious danger was sitting where he did without keeping a proper lookout. It may be that more than 50 per cent contributory negligence could have been attributed, but an increase was not sought by the respondent. 57I would not interfere with the primary judge's evaluative assessment. 58The appellant seeks, in the third order in the notice of appeal, judgment in the sum of $235,605.00. The sums contingently assessed by the primary judge as representing 100 per cent of the appellant's loss (reasons [99]-[125]) were as follows: Non-economic loss (whole person impairment) $ 26,950.00 Non-economic loss (pain and suffering) $ 17,500.00 Past economic loss $ 40,000.00 Future economic loss $ 120,000.00 Past out-of-pocket expenses $ 282.00 Future out-of-pocket expenses $ 30,873.00 Total $ 235,605.00 59That total is the amount sought by the appellant. However, the primary judge also made allowances for superannuation losses. His Honour allowed 9 per cent on the sum of $40,000.00 for past superannuation loss (reasons [115]) and 11 per cent on the sum of $120,000.00 for future superannuation loss (reasons [119]). He did not calculate the precise amounts but they are $3,600.00 and $13,200.00 respectively. The total, including these amounts, is $252,405.00. It is not clear why that higher amount should not be taken as reflective of 100 per cent of the appellant's loss. Accepting the primary judge's contingent finding on contributory negligence, the amount the appellant should be awarded, being 70 per cent of $252,405.00, is $176,683.50. If the parties dispute this, they may file a motion seeking leave to vary, or consent orders varying, the terms of these orders. 60The orders that I would make are as follows:
Appeal allowed.
Orders of the District Court made on 23 July 2010 be set aside and in lieu thereof it be ordered as follows: (a) Judgment for the plaintiff in the sum of $176,683.50 to take effect as at 23 July 2010. (b) The defendant pay the plaintiff's costs.
The respondent pay the appellant's costs of the appeal.
Grant leave to file within 14 days, a notice of motion seeking to vary, or consent orders varying, the terms of these orders to reflect judgment for the appellant in the amount contingently assessed by the primary judge as 70 per cent of the total loss recoverable. 61BEAZLEY JA: I agree with Allsop P. 62GILES JA: I agree with Allsop P.

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