Romeo v Conservation Commission (NT) [1994] NTSC 106; 104 NTR 1; 123 FLR 71; 85 LGERA 243 (25 November 1994)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA ANGEL J CWDS Negligence - duty of care HRNG DARWIN, 13-15 and 18-22 October 1993 #DATE 25:11:1994 Counsel for plaintiff: J Waters Solicitors for plaintiff: Waters James McCormack Counsel for defendant: T Pauling QC and R Webb Solicitors for defendant: Solicitor for the NT ORDER Action dismissed. JUDGE1 ANGEL J On or about 24 April 1987, the plaintiff, Nadia Anne Romeo, was severely injured when she fell some six and one half metres on to Casuarina Beach from the top of the Dripstone cliffs which form part of the Casuarina Coastal Reserve. The plaintiff was born on 1 June 1971. 2. The plaintiff alleges that the losses and damages she suffered as a result of her injuries were caused by the negligence of the defendant, the Conservation Commission of the Northern Territory. The Conservation Commission is and was at the time a public authority statutorily vested with the management and control of the Casuarina Coastal Reserve. 3. The Reserve is an area of natural beauty. The Dripstone Cliffs and Casuarina Beach are a popular recreation area. Members of the Darwin community are naturally attracted to the area for recreational purposes. They were so in April 1987. At that time, most visiting members of the public used the cliff top area of the reserve in the early evening to view tropical sunsets. An area known as Dripstone Park or Lions Park is some distance from the cliffs. A range of facilities were provided at that park by the defendant, such as barbeques, showers and toilets, car parking facilities, lighting, play equipment, shade and grassed areas. The only facility provided at the top of the Dripstone Cliffs was a car park, the perimeter of which consisted of low post and log fencing erected by the defendant. The grass at the top of the cliffs was cut and maintained by the defendant and plants there were irrigated by the defendant. 4. In April 1987, the plaintiff had a part-time job at Norgen-Vaas Icecream at Casuarina Shopping Square. On Friday, 24 April 1987, the plaintiff worked from 5.00pm until 9.00pm. After finishing work at 9.00pm, the plaintiff and her friend, Jacinta Hay, banked the night's takings at the National Australia Bank, Bradshaw Terrace, Casuarina. The plaintiff and Jacinta had arranged to meet other young people at Dripstone Cliffs for a beach party. At about 9.45pm, after banking the night's takings, the plaintiff went to the Casuarina Tavern bottle shop. According to her evidence, she bought a small bottle of Bundaberg Rum and six Island Coolers. The plaintiff estimated that the bottle of rum cost in the vicinity of $15.00. Jacinta went to the BP Casuarina Service Station to purchase a bottle of Coke. The plaintiff and Jacinta intended to drink the rum and Coke at the party. The six Island Coolers were intended for another friend, Kelly Docherty. 5. After the plaintiff had purchased the drinks, she met Jacinta and Kelly Docherty at the service station. The three girls were then given a lift to Dripstone Park at Casuarina Beach near the barbecue area in Lions Park. According to the plaintiff (whose evidence on this point I accept), they arrived at this area at approximately 10.15pm. According to the evidence of the plaintiff, within ten minutes of arriving at the barbecue area, the plaintiff mixed two drinks of rum and Coke for herself and Jacinta. The drinks were mixed in a milkshake container which the plaintiff had taken from work. The plaintiff estimated that she put an inch of rum in the container, then filled it to the top with Coke. A standard milkshake container was tendered as Exhibit D11. A Norgen- Vaas milkshake container is smaller. The plaintiff marked on Exhibit D11 the quantity of rum and the height of a Norgen Vaas milkshake container compared to a standard container. 6. According to their evidence, the plaintiff and Jacinta finished these drinks. In examination-in-chief, the plaintiff said that they remained in the barbecue area for approximately 15 or 20 minutes, then proceeded to the car park area at the top of the cliffs. This is the car park shown in Exhibit P1. The plaintiff estimates that she arrived at the top car park between 10.45pm and 11.00pm. Kelly Docherty estimated that they arrived at the car park at around 10.30pm. 7. When the plaintiff and Jacinta were in the top car park, they had another drink similar to the first one. According to the plaintiff, she and Jacinta talked to friends for approximately 20 minutes (t17). According to Jacinta's evidence, they were sitting on the line of logs which form the perimeter of the car park opposite a Sea Hibiscus bush (t53). Jacinta identified this area in Exhibit P1 with an oval shaped circle that encompassed a bush and a log fence and was on the landward side of the palm tree. The plaintiff confirmed that this group of people were sitting on the timber dividers which are depicted in Exhibit P8 (t17). After the plaintiff and Jacinta had finished their second drink, they gave some friends what was left of their rum (approximately half a bottle). The plaintiff estimates that there were six to ten people in the top car park (t28). 8. In her evidence, Jacinta stated that she then went over to another group of friends who were congregating on the sea-side of the log fence. She indicated this position by placing a smaller circle on Exhibit P1. Jacinta's last memory of seeing the plaintiff before the accident that evening was when the plaintiff came over to her when she was with that group of people. This was confirmed by Kelly Docherty, who saw the plaintiff and Jacinta talking between themselves in the area between the railing and the cliff and to the east of the Sea Hibiscus. 9. While the plaintiff was in the car park, she went across the road to a bush to the toilet. She then met a friend, Aretha Tafe, who had bought some Kentucky Fried Chicken. The plaintiff and Jacinta ate some of this chicken. The plaintiff estimates that she spent 15 minutes talking to Aretha Tafe. Aretha Tafe arrived at the car park at around 11.30pm. 10. Neither Jacinta nor the plaintiff have any recollection of the events that occurred between about 11.45pm and when they woke up on the beach. The plaintiff's last conscious memory is of sitting on the timber barrier at the eastern-end of the car park, eating chicken and talking to Aretha Tafe. 11. Casuarina Ambulance Station was alerted that the girls had fallen off the cliff, and St John's Ambulance Officers arrived at the cliffs at 2.07am. After examining and talking to the plaintiff, they decided that the best option was to call for the Fire Brigade with their lifting equipment and a Stokes lifter to extract the plaintiff. The NT Fire Service rescued the plaintiff and she was transported to Royal Darwin Hospital by St John's Ambulance. 12. There is conflicting evidence as to the quantity of rum that was purchased by the plaintiff. In examination-in-chief, the plaintiff stated that she purchased a small half bottle of Bundaberg Rum. She said that the bottle she bought was in the shape of a flask rather than a square bottle, and she estimated it as having cost $15.00 (t15). A small flask bottle of Bundaberg Rum contain 375mls and the larger square bottles contain 750mls. 13. In cross-examination, the plaintiff agreed with counsel for the defendant that if she and Jacinta had consumed two drinks each, their total consumption of rum would have amounted to about 400mls of rum. In answers to interrogatories sworn on 9 September 1989, the plaintiff said that she consumed 200mls of Bundaberg Rum. This answer was tendered as Exhibit D10. The parties agreed that 75mls of rum would equate to the mark made by Nadia on Exhibit D11 which indicated the amount of rum she put in the container (t340). 14. The manager of the Casuarina Tavern, Mr Trevor Schelg, gave evidence that in April 1987, the wholesale price of 750ml and 375ml bottles of Bundaberg Rum was $11.99 and $7.28 respectively. Mr Schelg stated that the retail mark-up ranged from 28% to 32% on a 375ml bottle, and 20% to 25% on a 750ml bottle. 15. Given the plaintiff's evidence that the bottle cost in the vicinity of $15.00, that the parties agreed that the two girls consumed 300mls of rum in total, and the evidence of Mr Schelg that it was more likely that a 750ml bottle of Bundaberg Rum cost $15.00, I find that the plaintiff purchased a 750ml bottle of Bundaberg Rum. I also find that Nadia and Jacinta consumed approximately 150mls of rum each on the evening in question. 16. There was a conflict of evidence as to whether the plaintiff was obviously affected by alcohol on the night in question. As indicated above, the plaintiff had two rum and Coke drinks on the evening in question. In cross-examination, the plaintiff confirmed that she had consumed alcohol only on two occasions previously and that the alcohol consumed on those occasions was rum and Coke. On the night in question, the plaintiff described herself as not being in any way affected by alcohol (t30). A number of witnesses gave evidence that the young people gathered at the top of the cliff were quietly talking rather than engaging in loud or boisterous behaviour. Kelly Docherty gave evidence that she considered that Jacinta was "a bit tipsy, but not drunk", and she did not notice anything unusual about Nadia's appearance (t70). Mr Henry's evidence was that the two girls were in a "good mood" and did not seem drunk to him (t76). During cross examination, Mr Dexter agreed that the behaviour of the plaintiff and Jacinta Hay did not lead him to draw any conclusions about their level of sobriety (t112). 17. Doctor Helen Dauncey, Consultant Pharmacologist, gave expert evidence on the effect of alcohol on mood and performance. Doctor Dauncey was asked to express an opinion on the effect of alcohol on a hypothetical person who had consumed alcohol to a similar extent as the plaintiff, with the same experience of alcohol and physical attributes as the plaintiff. Dr Dauncey was invited to assume that the two drinks contained 90 millilitres of rum each, or 180 millilitres in total. Her opinion was that such alcohol consumption would have adversely affected co-ordination, judgment, concentration and attention skills; but she was unable to assist the court with the extent of the effect on these performance skills (t174). 18. Doctor Dauncey was asked to evaluate two possibilities: first, that the plaintiff and Jacinta fell over the cliff shortly after 11.30pm; or alternatively, that the plaintiff sustained her injuries at around 1.00am in the morning. On the assumption the plaintiff fell shortly after 11.30pm, Doctor Dauncey considered that the effects of alcohol on behaviour, concentration and judgment would have been intense. At the later time, the effects, said Doctor Dauncey, would be less intense. She said (t176) that co-ordination, gait and speech would be impaired, but that the probability of fool-hardy behaviour being observed was less likely. 19. I accept Doctor Dauncey's general findings. 20. Given the plaintiff's age, the amount of food she had eaten that evening, and the fact that she had drunk rum on two previous occasions only and the nature of the mishap, I reject her evidence that she was not in any way affected by alcohol. I also give little weight to the observations of Kelly Docherty and Aiden Henry that Nadia did not seem drunk. In relation to Mr Dexter's observations, it should be borne in mind that he came into contact with the girls approximately two and a half hours after their last drink. On the evidence, I am of the view that the plaintiff was adversely affected by alcohol. However, it is not possible to say with any accuracy to what degree her behaviour, concentration and judgment were obviously impaired. 21. There was a conflict of evidence as to the position the plaintiff was found on the beach and as to the position on the cliff top from where she fell. A number of witnesses described the night of 24 April 1987 as a clear, dark night. In examination-in-chief, the plaintiff said visibility that night was limited to about nine metres, though observers saw things that night at a greater distance without commenting on poor visibility. 22. The plaintiff had not visited the top of Dripstone Cliffs prior to the evening in question, although she was familiar with the area generally. She stated that she had played cricket on the beach on Sundays. Counsel for the Defendant referred to interrogatories in which the plaintiff stated that she had played beach cricket about six times (t25). On those occasions, the plaintiff had reached the beach from the car park at the top of the cliffs by a path giving access to the beach from the cliff top on another side of the same point (t25). 23. The plaintiff and Jacinta have no recollection of the circumstances in which they fell from the cliff. The plaintiff alleges that she fell off the cliff on to the sand at the point where the two people in Exhibit P3 are standing. At this point, there is a gap in the vegetation which borders the cliff (see Exhibit P1). This gap in the vegetation appears to have been caused by water run-off. It was not of the defendant's making. At the base of the cliff there are two caves. The two caves are shown in Exhibit D9. The plaintiff says she fell on to the sand near the right-hand cave on Exhibit D9. The defendant says the plaintiff fell to a point on the sand near the other cave. 24. The plaintiff's first conscious memory after approximately 11.45pm was waking up at the bottom of the cliff in the sand. According to the plaintiff's evidence, the plaintiff was lying on her stomach, her feet were pointing towards the rock island in the middle of the sand and her head was towards the dark cave shown in Exhibit P3. The plaintiff estimates that she was one to two metres from the dark cave shown in Exhibit P3. The plaintiff gave evidence that Jacinta was directly behind her in the vicinity of the plaintiff's feet. This was confirmed by Jacinta's evidence. 25. Counsel for the plaintiff submitted that the absence of cuts and abrasions on either the plaintiff or Jacinta, supported the submission that the plaintiff fell from this part of the cliff. Counsel for the plaintiff submitted that if the plaintiff fell from where the defendant said she fell, the plaintiff's injuries would have included cuts and abrasions, since this part of the cliff face had shelving below the lip. In contrast, counsel for the defendant submitted that I should find that the place at which the girls fell was in the vicinity of the Sea Hibiscus bush, rather than the gap in the vegetation in Exhibit P3. Counsel for the plaintiff relied on the evidence of the plaintiff, Aiden Henry and Monica Romeo, while counsel for the defendant relied primarily on the evidence of the two Northern Territory Fire Service officers and the ambulance officer, Niall Dexter. 26. I consider that the plaintiff's evidence as to her position on the beach was cogent and credible. Her evidence that she woke up on the beach, lifted her head and saw directly in front of her a dark patch indicating the opening of a cave and rocks was not challenged in cross-examination (t19). Although she was drifting in and out of consciousness, she had ample opportunity to observe her surroundings as she was in that position for some time. I agree with counsel for the plaintiff that the other witnesses who gave relevant evidence as to the plaintiff's position, such as the witnesses Mayo, McLeod and Dexter, can be challenged to some degree because of difficulty determining distance, angles and depth from the top of the cliffs on a dark night. 27. The evidence of the NT Fire Service officers, McLeod and Mayo, and the St John's Ambulance officer, Dexter, as to the position of the plaintiff on the sand, was tempered by the fact that more than six years had elapsed since the events in question had occurred. In contrast to Monica Romeo who visited the cliffs in the months following the accident, neither of the former three witnesses had visited the scene in the intervening years. Mr McLeod returned to the scene to search for his radio, but not for the purpose of pinpointing the plaintiff's position. In contrast to Monica Romeo, Mr Henry and the plaintiff herself, all three officers were there for the purpose of rescuing the plaintiff. Thus preoccupied, they had an inferior opportunity to accurately assess the plaintiff's position relative to the caves and to specific locations on the top of the cliffs. 28. During cross-examination, Mr Dexter stated that his principal concern when he looked over the cliffs was to get down to the beach as quickly as possible and assess the nature of the patient's injuries (t104). Accordingly, his recollection of the events may be discounted. Although he had a conversation with Jacinta, he could not recall what she looked like, or what the plaintiff and Jacinta were wearing (t107). Although Jacinta had a broken collar bone and a punctured lung, Mr Dexter, an ambulance officer, did not notice anything unusual about her (t111). In contrast to the evidence of the plaintiff, Monica Romeo and Mr Henry, Mr Dexter's evidence was that the plaintiff's head faced towards the cliff and her feet faced almost directly out towards the water. Mr Dexter's evidence is also at odds with the plaintiff in so far as he said she was lying on her back (t105). On the whole, I generally prefer the evidence of the plaintiff, and of Monica and of Mr Henry to that of Mr Dexter in relation to the plaintiff's position on the beach. 29. While Mr Henry was at the BP 24 Hour Service Station at Casuarina in the early hours of the morning, he was told that the two girls had fallen from the cliff. He returned to the cliff at the point where there is a gap in the vegetation (marked with Mr Henry's initials on Exhibit D14), and saw the plaintiff lying on the beach directly below. Mr Henry was also asked by counsel for the defendant to mark on a photograph of the two caves the position in which Ms Romeo was lying (Exhibit D15). After observing Nadia from the top of the cliff, Mr Henry began to walk down to the beach. He met Jacinta Hay on the way down. She explained what had happened and they walked down to where Nadia lay on the beach. 30. Mr Henry's evidence was that he consumed about nine or ten cans of Victoria Bitter between 4.30pm in the afternoon and the early hours of the morning of 25 April when he left the cliff area. The majority of these cans were consumed from 7.30pm onwards. He jogged from the cliffs to BP Casuarina (a distance of 3-4kms), then according to his evidence, ate some food. 31. Although the evidence about Mr Henry's sobriety is open to a number of interpretations, I consider that his evidence should be given credit. He was definite about the plaintiff's position. Although he had consumed a relatively large amount of alcohol that evening, he had been exposed to alcohol for a number of years and was familiar with the area, having drunk alcohol on a number of occasions at the Dripstone Cliffs. He had stopped drinking alcohol earlier in the evening, and jogged a considerable distance to BP Casuarina. I agree with counsel for the plaintiff, Mr Waters, that the scene would have left an indelible impression on his memory. He had more time to observe than the officers involved in the rescue. I agree with Mr Waters that Mr Henry did not have the same problems of perspective, or judging angles, as Dexter, McLeod and Mayo, when he went to the gap in the vegetation and looked directly down to where the plaintiff lay on the beach. 32. I turn to the evidence of Monica Romeo. On Exhibit D14, Monica indicated with a cross and her initials where her sister was lying on the sand (t192). Upon being shown Exhibit P7, Monica identified the plaintiff's position as a mark made by Mr Henry on the exhibit. Monica indicated that she observed her sister from a point on the cliff face slightly to the left of the gap in the vegetation shown in Exhibit D14. 33. During cross-examination, Monica rejected the proposition that her sister could have been midway between the point Monica identified on Exhibit P7 and the Sea Hibiscus bush depicted at the top of the cliff to the left of the photograph. In contrast to Mr Dexter's evidence, Monica's evidence was that her sister was lying on her stomach with her face towards the cliff. Monica estimated that the plaintiff was one to two metres from the cliff face (t200). 34. I accept Monica's evidence for a number of reasons. She was an observer rather than a participant in the rescue operation. At that stage, she was a disinterested observer in that she did not realise that the person she saw lying on the beach was, in fact, her sister. She observed the plaintiff for a period of ten minutes from the vantage point directly above the plaintiff. She returned to the area on two occasions in the week following the accident, first with her boyfriend, then with her mother. She visited the cliffs again in August 1987 for the purpose of taking some photographs, one of which now comprises Exhibit P3. No other witness had a contemporary opportunity to refresh their memory. Under cross-examination the witness was "adamant" and "definite" that she observed the plaintiff in the position she indicated (t204). 35. I accept the evidence of the plaintiff as being the most cogent and reliable indication of her position after she fell. Her evidence is supported by that of her sister Monica, and Aiden Henry. I consider their evidence credible. I prefer that evidence to the evidence of Mr Dexter as to the plaintiff's position on the beach for the reasons I have canvassed above. I find that the plaintiff's position was as indicated by Mr Henry in the Exhibit P3, that is, at a point on the sand directly below the gap in the vegetation on the edge of the cliff face shown in Exhibit P1. 36. The plaintiff and Jacinta were affected by alcohol. The plaintiff and Jacinta wandered off from the group of friends who were congregating on the sea-side of the log fence. This group of friends were approximately three metres from the cliffs' nearest edge. It is apparent and I infer that the plaintiff and Jacinta did not realise the location of the cliff edge and walked off and over the cliff edge at the point where there is a gap in the vegetation, some distance from the log fence. Leading to that gap was an area of light coloured bare earth naturally created by surface water running off the cliff. This area is to be seen in Exhibit P1, and in Exhibit (P4). In the gloom it had the deceptive appearance to the girls of a foot path leading to the gap in the vegetation. It did not have that appearance in daylight. Nor would it have so appeared to a sober alert person on the night in question. It did not appear so to Mr Henry or to others on the night in question. I infer that the plaintiff and Jacinta were deceived to follow that path to and over the cliff edge. They literally walked over the edge with their heads in the air. They did not slip or at any time apprehend the presence of the cliff edge prior to their fall. 37. The plaintiff pleaded her case in her Amended Statement of claim as follows: "3. At all material times the Defendant was the occupier of the Casuarina Coastal Reserve. 4. At all material times the Defendant was responsible for the management, regulation and control of the said Casuarina Coastal Reserve. (A) The Defendant in and for the purpose of such management, regulation and control carried out landscaping including mowing and irrigation of the reserve, installed roads, car barriers and improved access to the reserve. (B) The Plaintiff and the class of persons to whom she