Saad & Anor v Gosford City Council

Mulligan v Coffs Harbour City Council [2005] 223 CLR 486 CASES CITED : Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40

Sarkis Saad - First Plaintiff PARTIES : Mayada Saad - Second Plaintiff Gosford City Council - Defendant

COUNSEL : C Evatt/M Rollinson - Plaintiffs S Campbell SC/P Cummings - Defendant

SOLICITORS : Teakle Ormsby George - Plaintiffs Moray & Agnew - Defendant

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20239/2005 - Sarkis SAAD & Anor v GOSFORD CITY COUNCIL

JUDGMENT 1 HIS HONOUR: Nature of claim: On the afternoon of 15 November 2003 Anthony Saad drowned in the Terrigal Lagoon. Anthony was born on 4 November 1997 and was aged six at the time of his death. The plaintiffs are his parents. The defendant was the public authority which had the care and control of the Terrigal Lagoon. 2 The plaintiffs have brought proceedings under the Compensation to Relatives Act 1897 and seek damages for nervous shock. They allege that Anthony's death was caused by the negligence of the defendant.

Factual background 3 Unless otherwise indicated, I find the facts to be as follows: 4 The first and second plaintiffs were married on 5 March 1997. It was the second marriage for both of them. Mr Saad had children from his first marriage but Mrs Saad did not. At the time of Anthony's death, they had two children, Anthony and Kirsten born 21 January 1999. Kirsten was four at the time of Anthony's death. Since his death the plaintiffs have had two more children Elias born 29 January 2005 and Christopher born 21 March 2007. 5 At the time of the accident Mr and Mrs Saad had been living at Terrigal for two and a half years. Mrs Saad had been to the Terrigal Lagoon with her children once or twice before the occasion of Anthony's death. 6 The 15th November 2003 was a very hot day. Mrs Saad with her two children went to the Terrigal Lagoon. She did so because she regarded the beach with its surf as too dangerous. She saw no warning sign when she arrived at the lagoon, other than a sign which prohibited a number of activities (exhibit E). Anthony was either unable to swim or was not a good swimmer. Kirsten was not able to swim. Anthony was tall for his age, perhaps as tall as 1.20 metres. 7 Mrs Saad was accompanied by two adult friends, Susan and Sadie, and by one other child. The group occupied a position on the sand on the northern shore of the lagoon to the east of the bridge. Initially Mrs Saad went into the water of the lagoon with her two children to test the depth of the water. Subsequently the children went into the lagoon on their own. 8 It was the evidence of Mrs Saad that when the children went into the lagoon the second time, they did so very close to where she was sitting and that she kept them under careful observation. She last saw Anthony when he was standing next to the canoes with the water below his knees. It was less than five minutes later that she noticed that he was missing. 9 There are some difficulties with that evidence. The evidence of Mr Walter, who hired out the canoes and paddle boats, was that he noticed Kirsten holding onto the end of a paddle boat and saw that she was very upset and crying. When he went to her aid she was so upset that he could not understand what she was saying. It was at that point that Mrs Saad came up to him and took her daughter away. It was Mr Walters' observation that the distance between where Mrs Saad was sitting on the beach and the boat where Kirsten was standing was 150 metres. Ten or fifteen minutes later Mrs Saad approached Mr Walter and asked him whether he had seen her son. 10 I accept the evidence of Mr Walter in preference to that of Mrs Saad. He was an impressive witness who gave his evidence in a calm and deliberate fashion. He had no motive not to tell the truth. It was not suggested that he was not telling the truth or that he was mistaken in any of his evidence. 11 I find that when the children went into the lagoon on the second occasion, they were much further away from Mrs Saad than the one or two metres which she asserted. I accept that she was doing her best to keep them under careful observation, but it is clear that they were outside of her observation for minutes at a time. I have reached that conclusion because of the time it took her to notice that Kirsten was upset and come to her assistance and because she appears to have made no observation of Anthony moving from the location of the boats to where his body was found. There is also the gap of at least ten minutes between her coming to Kirsten's aid and asking Mr Walters whether he had seen her son. 12 I am satisfied that Kirsten fell into the lagoon and swallowed some water. Quite clearly the depth of water into which she fell was not particularly great, given that she was able to get to her feet and was observed by both Mrs Saad and Mr Walter to be standing by the end of a boat. The fact that she had swallowed some water and was unable to swim would account for her distressed and upset state. It is consistent with the observation of Mrs Saad that Kirsten spat out some water. 13 Mr Walter told Mrs Saad that he had not seen her son. Thereafter he helped her look for Anthony in the car-park. He noticed that she was becoming more and more upset. He offered her his mobile phone so that she could ring for help but she declined that offer. Shortly afterwards one of the women with Mrs Saad asked whether she could use Mr Walters' mobile phone and made a number of calls on it. It was as a result of those calls that Mr Saad became aware that his son was missing and that the police and lifesavers were alerted. 14 Approximately two hours after she first noticed that he was missing, Anthony's body was found in the lagoon some eleven metres into the lagoon from the northern shoreline. 15 The person who found his body was Mr Lindsay Lyon. He was then aged 18 and was a volunteer surf lifesaver. Lines of persons comprising lifesavers and civilians had made a number of crossings of the lagoon in order to search for Anthony and it was after about nine - ten crossings that his body was discovered. 16 There is an issue as to precisely where his body was discovered. This is because when giving his evidence Mr Lyon had marked a position about nine metres into the lagoon from the northern shoreline, not far to the west of where the paddleboats were located (exhibit K). When interviewed by the police five days after the accident, Mr Lyon had indicated a position about 11 metres into the lagoon but much further to the west of where the paddleboats were located. The depth of the lagoon at that location was measured by the police to be 1.25 metres (exhibit F). 17 There was no suggestion that Mr Lyon was doing anything other than trying to tell the truth. I am satisfied that his recollection five days after Anthony's death was likely to be more accurate than his recollection at the hearing and that exhibit F provides a more accurate indication of where Anthony's body was found, ie a significant distance to the west of where the paddleboats were located and approximately 11 metres into the lagoon from the northern shoreline. 18 It is necessary to say something about the configuration of the Terrigal Lagoon. The evidence which I accept on this issue is that of Messrs Collachor, Walter and Lyon. To the extent that there is any difference in their evidence, I prefer that of Mr Lyon because he actually traversed the lagoon on the day of the accident, both to and from the northern shoreline, on a number of occasions and specifically walked across that part of the lagoon where Anthony's body was located. 19 The lagoon is not tidal. It is separated from the ocean by a berm. When the water in the lagoon reaches a specified level, the defendant breaches the berm and allows the water to flow into the ocean. The lagoon is then allowed to naturally replenish itself until once again that specified depth of water is achieved and then the same process is repeated. There is no current in the lagoon. 20 On the basis of that evidence, I am satisfied that Anthony drowned at about the location where his body was found. In the absence of any current or tidal movement, there is no reason why his body would have moved in the two hours between when he was first noticed to be missing and when his body was found. 21 I accept that at the northern shoreline of the lagoon the water was very shallow but that as one moved in a southerly direction into the lagoon the depth of the water steadily increased. This increase is not sudden but gradual. On the day of the incident, the maximum depth appears to have been about 1.6 - 1.7 metres, ie chest height on a male. That deeper part of the lagoon seems to have been caused by a channel which then rose somewhat sharply to shallow water as one approached the southern shoreline. 22 This was the effect of the evidence of Mr Lyon and is confirmed, at least in part, by the spotheights measures by the police from the northern shoreline of the lagoon on 20 November 2003. At 3 metres from the northern shore the depth is .33 metres, at 5 metres the depth is .5 metres, at 7 metres the depth is .68 metres, at 9 metres the depth is 1 metre, at 10 metres the depth is 1.15 metres, at 11 metres the depth is 1.25 metres, at 14 metres the depth is 1.4 metres (exhibit F, exhibit 6). 23 It was common ground that Anthony entered the lagoon from the northern shoreline. 24 Implicit in those findings is my rejection of the evidence of Kirsten Saad and Ramez Saad. I reject their evidence, however, for quite different reasons. 25 In the case of Kirsten Saad, she was clearly doing her best to give accurate and truthful evidence to assist the court. It is clear, however, that because of her age, both at the time of Anthony's death and at the time of her testimony, the evidence is unreliable. 26 I do not accept that there was a hole into which either she or Anthony fell very close to where the paddleboats were located. This is contrary to the evidence of Mr Walter which I accept. Mr Walter did not watch Kirsten drown, but in fact came to her assistance. Mrs Saad did not remove Kirsten from any hole. The water in the lagoon would not have contained chlorine. Kirsten's answer to her mother on the day is likely to be more accurate than her testimony at trial, "I don't know. I didn't see him". 27 Kirsten's evidence that there was a deep hole near to the paddleboats into which Anthony fell is inconsistent with where Anthony's body was found regardless of whether one relies upon exhibit F or exhibit K. It is clear from the cross-examination of Kirsten that not only does she have a poor recollection of the events of that day but to the extent that she has a recollection, it is a recollection which she has acquired because of what she has heard others say. One thing which emerges clearly from the evidence is that there were no holes, in the normal sense of the word, in this part of the Terrigal Lagoon. At most there was a channel, steep on one side and with a gradual incline on the other. 28 In the case of Ramez Saad, I found him to be unimpressive as a witness. His evidence about Mrs Saad being the only person at the hospital is surprising and is inconsistent with the evidence of Ms Small. His description of how he came to "fall" into a hole some two and a half metres from the northern shoreline of the lagoon is fanciful. This is particularly so given his acceptance of the description that it was "like a big pothole". Such a description is not only inconsistent with the evidence of those persons who were familiar with the lagoon (Messrs Collachor, Walter and Lyon) but it is inconsistent with the spotheights measured by the police and the survey report (exhibits F and 6). 29 It will never be known how Anthony came to drown. One can speculate that he may have tried to swim and then discovered he was out of his depth, he could have developed a cramp or suffered some other misadventure. What is clear, however, is that he did not fall into a hole or channel or slip off some steep underwater embankment. Such a scenario is quite inconsistent with the evidence as to the bottom of the lagoon as one moves from the northern shoreline.

Liability 30 In the Statement of Claim the particulars of negligence were:

"(a) No warning. (b) Warning sign which had been in the area where the fatality occurred for years taken down or removed and not replaced. (c) Insufficient number of warning signs as to the dangers of swimming in the lagoon. (d) Warning signs not placed in appropriate position. (e) No proper supervision or control of swimming activities in the lagoon. (f) Res ipsa loquitur. (g) Insufficient number of employees engaged in the operations. (h) Failure to fence off or barricade the lagoon to prevent children from swimming therein. (i) Lagoon dirty and murky. (j) Failure to keep the water of the lagoon clean. (k) Failure to fill in, remove and/or empty the lagoon. (l) No proper, adequate or regular inspection of the lagoon for safety to swimmers and children and for inquiring that the warning signs were still in position and properly placed so that the warnings would be apparent to persons including the plaintiffs. (m) The area of the lagoon in which the fatality occurred was an area where there had been previous fatalities and injuries to swimmers including children and the defendant was in breach of its duty to fence off, guard, barricade or prevent persons including young children from swimming in the area and/or in the alternative was in breach of its duty to ensure that proper and adequate warning signs were put in position and kept in position." 31 When counsel for the plaintiff opened the matter, many of those particulars were abandoned. The plaintiffs' case was put and argued as a failure to warn. Exhibit B comprised photographs which showed a sign, positioned near to the lagoon, in the following form: " WARNING DUE TO PREVIOUS FATALITIES AND THE PRESENCE OF DEEP HOLES IN THIS LAKE IT IS CONSIDERED VERY DANGEROUS FOR BATHING CHILDREN SHOULD BE UNDER ADULT SUPERVISION AT ALL TIMES." 32 It was common ground that this was the only warning sign near to the lagoon and that the sign was so positioned that it would not be seen by anyone approaching the Terrigal Lagoon by the usual route. There was no similar warning sign anywhere on the northern shoreline of the beach. The sign shown in exhibit B had been in position since 1975. There had been a similar sign outside a motel on an approach to the lagoon over the bridge, but that sign had been vandalised and removed by the defendant in 2001. 33 The plaintiffs' case as put at trial was that a sign or signs in identical form to that depicted in exhibit B should have been placed on the northern shoreline of the lagoon and that had this been done, Anthony would not have drowned. 34 The defendant submitted that there were in fact no holes as such in the lagoon. From the northern shoreline of the lagoon all that occurred was a gradual increase in the depth of the lagoon to a maximum of 1.6 or 1.7 metres. This did not require any warning because it was obvious to anyone who took a few paces into the lagoon that there was an increase in its depth as one moved away from the northern shoreline. This was known to Mrs Saad. Mrs Saad also appreciated that because water was involved, there was a need to closely supervise her children and this she endeavoured to do. The erection of such a sign would have done no more than to provide information to Mrs Saad which she already had. In relation to causation, there was no evidence that a hole or other hidden peril had contributed to Anthony's death. The defendant also relied upon the provisions of the Civil Liability Act 2002 (CLA), in particular ss 5F, 5G and 5H relating to "obvious risk". 35 Mrs Saad initially entered the lagoon with her children for the express purpose of assessing its depth. It is clear from exhibit F that she would only need to take a few paces for it to be clear to her that the further one moved from the northern shoreline, the deeper the lagoon became although that increase in depth was only gradual. The fact of an increase in depth would also have been obvious to her from the 40 or so other persons, including children, who were playing in the water of the lagoon at the time. This is clear from exhibit 1. I am satisfied that Mrs Saad knew that the lagoon became gradually deeper as one moved further away from the northern shoreline. 36 Leaving aside the actual knowledge of Mrs Saad, it was reasonable for the defendant to expect that members of the public using the lagoon would know that it became deeper the further one moved away from the northern shore. It was also reasonable for the defendant to expect that members of the public would know that the combination of children and water was a potentially dangerous mix so that children playing in the waters of the lagoon needed to be carefully watched.

37 I should at this stage say something about the sign which the plaintiffs submit should have been erected on the northern shoreline of the lagoon. I do not know, nor was it made clear by the evidence, what is meant by the words "deep holes" as used in the sign shown in exhibit B. There may have been deep holes in the lagoon in 1975 when the sign was erected. To refer to that part of the Terrigal Lagoon where Anthony drowned as having "deep holes" seems from the evidence to be incorrect. The extent of any hazard in the lagoon was best described by Mr Collachor as follows: "Q. Have you noticed anything about the surface of that lagoon under the water? A. Well it goes from shallow to deep, but it is not a regular gradient in parts. Q. Have you noticed anything about what is on or in the surface of the bottom of the lake? A. Some parts of it become a hole, or it falls away quite quickly. Q. Have you observed or felt holes in that area? A. I have in the past walked across that section and sometimes you fall down quite quickly or your leg has gone into a deeper section unexpectedly. Q. It is not all flat and undulating? A. It doesn't have a gradient like a soup bowl where it goes down gradually or at a predetermined grade and goes up the side of the bowl. I don't think that cross-section there is like that. Q. What is it like? A. Well, it is irregular, it can move out at a fairly gentle gradient, then go down quite quickly, but that can also change over time." (T.47) 38 If that is the hazard to which the sign was referring, then it was misleading. What Mr Collachor appears to be describing is the sort of unevenness one would expect on the bottom of most naturally occurring waterways. In any event, as the evidence of Mr Lyon made clear, the scenario which Mr Collachor described did not exist on the day of the accident for a person such as Anthony entering the lagoon from the north shoreline and progressing towards the south. It follows that there is considerable force in the defendant's submission that the particular hazard referred to in the sign was not causally related to Anthony's drowning. 39 There was no issue at trial that the defendant as a public authority vested with the statutory care, control and management of the lagoon owed a duty to take reasonable care for Mrs Saad and Anthony. The real question, however, was what was the content or scope of that duty of care? 40 The starting point for such an inquiry is to look at the nature of the danger assessed prior to the accident with reference to such matters as the functions of the public authority, the obviousness of the danger and the care ordinarily exercised by members of the public (Gummow J Vairy v Wyong Shire Council (2005) 223 CLR 422 at [79]). 41 Looking at Terrigal Lagoon prospectively, that is before the occurrence of the accident, the "nature of the danger" to which Anthony was exposed was one common to almost every natural waterway, ie that as one moved further away from the shore it became deeper. That a child who was not a strong swimmer might get into difficulty if he walked or swam beyond his depth was a danger of the most obvious kind. 42 Gleeson CJ and Kirby J commented to that effect in Vairy: "[5] Both cases involve the tortious liability of public authorities responsible for the areas in which the diving accidents occurred. They were areas of recreational land, open to the general public. Many forms of outdoor recreation involve a risk of physical injury. In some cases, while the risk of injury may be small, the consequences may be severe. Swimming is a popular recreational activity along the Australian coast. It involves certain risks, and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality maybe a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging headfirst. This also, is risky. Diving into water that is too shallow, or diving too deeply into water, in which only a shallow dive is safe, can have catastrophic results. Again, short of total prohibition, it is impossible to eliminate such risks; and no-one suggests that swimmers should be prohibited generally from entering the water head-first. [6] In each case, the breach of duty alleged was a failure to warn. A defendant's duty of care is owed to an individual plaintiff, but it is a duty to do what is reasonable in all the circumstances. The fact that a defendant is a public authority with the responsibility of managing large areas of recreational land may be a circumstance material to a judgment about the reasonableness of its conduct. As Brennan J pointed out in Nagle , the duty owed to the plaintiff is, in the ordinary case, owed to him or her as a member of the public. The nature of the premises, the right of public access, will have an important bearing on what reasonableness requires by way of a response to risks associated with the use and enjoyment of the land. [7] Warning signs only serve a purpose if they are likely to inform a person of something that the person does not already know, or to draw attention to something that the person might have overlooked or forgotten. The obviousness of a danger can be important in deciding whether a warning is required. Furthermore, a conclusion that a public authority, acting reasonably, ought to have given a warning ordinarily requires a fairly clear idea of the content of the warning, considered in the context of all the potential risks facing an entrant upon the land in question. When a person encounters a particular hazard, suffers injury, and then claims that he or she should have been warned, it may be necessary to ask: why should that particular hazard have been singled out? If a public authority, having the control and management of a large area of land open to the public for recreational purposes, were to set out to warn entrants of all hazards, regardless of how obvious they were, and regardless of any reasonable expectation that people would take reasonable care for their own safety, then signs would be either so general, or so numerous, as to be practically ineffective. If the owner of a ski resort set up warning signs at every place where someone who failed to take reasonable care might suffer harm, the greatest risk associated with downhill skiing would be that of being impaled on a warning sign. [8] Observation confirms that, in this community, it is accepted that there may be some circumstances in which reasonableness requires public authorities to warn of hazards associated with recreational activities on land controlled by those authorities. Most risky recreational activities, however, are not the subject of warning signs. It is impossible to state comprehensively, or by a single formula, the circumstances in which reasonableness requires a warning. The question is not answered by comparing the cost of a warning sign with the seriousness of possible harm to an injured person. Often, the answer will be influenced by the obviousness of the danger, the expectation that persons will take reasonable care for their own safety, and a consideration of the range of hazards naturally involved in recreational pursuits." 43 In view of those considerations, why did the defendant have a duty to warn against a risk which was so obvious? Alternatively, if as the plaintiffs contend the defendant had a duty to warn of the risks associated with the increasing depth of the lagoon as one moved from the northern shore, why did it not have a duty to warn against any other perils associated with the entry of persons into naturally occurring bodies of water? 44 It should be noted that the defendant did not put Anthony in harm's way in the sense that it invited or encouraged him to use the Terrigal Lagoon. It is of no relevance to that issue that the defendant could have prohibited him from entering the water or could have provided a warning that the depth of water in the lagoon varied, particularly as one moved away from the shoreline. Nor was the defendant's control over the lagoon such that it could be said to have created the risk to which Anthony was exposed on the day of his drowning. The gradual increase in depth of the lagoon as one moved from the shoreline was a natural phenomenon although the creation of the channel may have been due in part to the opening of the berm from time to time. It seems to me that the control exercisable by the defendant over Anthony and his mother on the one hand and the lagoon on the other did not rise to such a level that the content of the duty of care which it owed to them should have included an obligation to issue the sort of warning for which the plaintiffs contend. (Vairy [92]) 45 The factual background to this case is rather similar to that which was considered in Mulligan v Coffs Harbour City Council [2005] 223 CLR 486. In summarising the conclusion of the trial judge Gleeson CJ and Kirby J said: "[6] … There were features of the place where the appellant was swimming that were distinctive, but the conditions that led to the appellant's injury were not unusual. The danger that materialised was one that exists at virtually every Australian beach, and in most waterways. It is one of many dangers involved in swimming. It is difficult to see how such common dangers can be addressed by particular warnings at particular locations." 46 On the limited information available, what caused Anthony's death was the gradual increase in depth of the lagoon as one moved from the northern shore. That circumstance as Mulligan points out is a feature of virtually every Australian beach and most waterways. It is one of the many dangers involved in swimming, particularly where children are involved. I am not persuaded that the content or scope of the duty of care owed by the defendant to the plaintiffs included an obligation to erect a warning sign which referred to an increase in depth of the lagoon. 47 If one approaches the case from the point of view of breach of duty of care, as distinct from whether the duty of care required such a warning, the same result is arrived at. 48 When considering questions of breach of duty one is required to follow the mode of reasoning set out in Wyong Shire Council v Shirt (1980) 146 CLR 40. The possibility of a young child such as Anthony drowning was reasonably foreseeable. In determining what response if any was required to that foreseeable risk the Court is to take into account such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities of the defendant. The Court has to then balance those considerations. 49 Such an approach, however, is not to be applied inflexibly. In Mulligan the following observation was made: "[2] … Moreover, depending upon what may be involved in the concept of conflicting responsibilities, in some contexts, of which the present is an example, to treat what was said in Shirt as an inflexible formula could produce a distinctly unreasonable result. Where the suggested alleviating action is putting up a single warning sign at a particular location in a public recreational area, the expense, difficulty and inconvenience involved may be made to appear negligible. The more important question may be why a public authority would choose to single out that particular spot, or that particular risk, as the subject of a warning. … [3] This Court recently said, in Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19 that reasonableness may require no response to a foreseeable risk, and pointed out that householders do not ordinarily place notices at their front doors warning entrants of all the dangers that await them if they fail to take reasonable care for their own safety. That observation was not the product of a calculus; it was simply a statement about community standards of reasonable behaviour." (Gleeson CJ, Kirby J) 50 Hayne J made similar observations in Vairy: "[105] … Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the "Shirt calculus" is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. … [107] Diving or plunging into water carries a risk of catastrophic spinal injury if the water is too shallow. That risk is always present, and foreseeable, wherever there is a body of water into which someone may dive or plunge. The diver may strike his or her head on the bottom or on some obstacle in the water. But it does not follow because an injury is foreseeable that the person who has the care, control and management of the land from which a person may enter the water in that way must in every case take steps to warn against, or prohibit, such conduct." 51 Tragic though the facts of this case are and despite the sympathy which I have for the terrible loss suffered by the plaintiffs, the case law and the facts of the case compel a verdict for the defendant. I am not persuaded that the content of the duty of care owed by the defendant to the plaintiffs included a requirement to erect a warning sign which referred to an increase in depth of the water in the lagoon and which contained a reminder that children swimming in the lagoon should be closely supervised. These were features which exist in almost every naturally occurring body of water where swimming takes place. 52 I am not persuaded that the failure to erect such a sign constituted a breach of duty of care by the defendant. It was reasonable for the defendant to expect that members of the public such as the plaintiffs would be aware of such matters. In fact the second plaintiff was so aware. The proposed sign would not have provided any information which she did not already have. 53 Finally, I am not persuaded that the absence of the sort of sign proposed by the plaintiffs caused Anthony's death. If it be the fact that there were deep holes in the lagoon, they played no part in his death. The plaintiffs' case fails to satisfy the test of "factual causation" referred to in s5D CLA. 54 I do not propose to analyse in any detail the application of ss 5F, 5G and 5H CLA to the facts of this case. It seems to me that the wording of those sections sits somewhat uneasily with a situation where plaintiffs are claiming in respect of the death of a third party. For the reasons indicated, however, it is clear that the risk of Anthony drowning was an "obvious risk" as defined by s5F so that s5H might have applied to the facts of this case. 55 Although I have found against the plaintiffs on the issue of liability, it is necessary for me to assess damages in case that finding is overturned on appeal.

Damages Compensation to Relatives claim 56 It was accepted by the defendant that an amount of $12,625 had been properly paid in relation to the funeral of Anthony. Accordingly the plaintiffs would be entitled to that amount. 57 The plaintiffs claim $10 per week for 3 ½ years for flowers purchased for Anthony's grave. A claim is also made for $10 per week for the next five years for the same purpose. It seems to me that some expenditure for flowers by the plaintiffs is reasonable given Anthony's age at the time of his death and the close relationship between him and Kirsten. The amount claimed is, however, excessive. I would allow an amount of $1,500 for the purchase of flowers both for the past and future. 58 A claim is made for $10,000 to cover the cost of a wake and for masses to be said for Anthony. It seems to me that some expenditure for masses is reasonable, but I disallow the cost of the wake. The wake as described in evidence was not a reasonable expense. I propose to allow the amount of $1,000 for masses. 59 Accordingly, under the Compensation to Relatives Act had the plaintiffs been successful in their claim I would have awarded the amount of $15,125.

Mrs Saad - claim for nervous shock 60 Mrs Saad was born on 5 February 1965 and was aged 42 at the time of trial. Her evidence was that the loss of Anthony had a devastating effect on her. She was no longer able to live in Terrigal so that the house there had to be sold. She could no longer work in the mixed business which she had started in Terrigal and arranged for its sale within weeks of Anthony's death. She not only neglected herself, but she neglected the home and Kirsten so that Mr Saad was obliged to look after those matters. She had hoped that by having other children she would get over the loss of Anthony but her hopes in this regard had been disappointed. It was her evidence that she was neglecting the two youngest children. From being a very happy person she was now sad and depressed. 61 Mrs Saad's presentation was that of someone who was sad and depressed. She broke down on a number of occasions when talking about Anthony and the circumstances in which he met his death. 62 An entry in notes from the Gosford District Hospital on the day of Anthony's death described Mrs Saad as "in extreme grief". Mrs Saad attended her general practitioner, Dr Lau, on 18 February 2004. She complained that since the accident she was sleeping poorly and was waking frequently with nightmares. She was chronically tired. She had no motivation to do anything. She had lost interest in everything. She did not want to groom herself and she did not really care about what she looked like. She did not care about her family. She was not interested in cooking or doing any housework. She frequently entertained suicidal thoughts. 63 Dr Lau diagnosed Mrs Saad as suffering from a major depressive reaction. He referred her to a psychiatrist, Dr Benjamin, who took over her treatment. Mrs Saad saw Dr Lau on a number of occasions up to 15 June 2005. 64 At the same time as she was seeing Dr Lau, Mrs Saad was also consulting another general practitioner, Dr Haddad. She saw him for the first time on 27 January 2004. His observations were similar to those of Dr Lau. She was regularly consulting Dr Haddad up to 20 November 2006. 65 Dr Benjamin, psychiatrist, was treating Mrs Saad between 4 February 2005 and 28 August 2006. He had a number of reservations about her condition which are set out in the conclusions to his report. "(a) Although Mayada's initial presentation was consistent with the diagnosis of Grief Reaction (with the differential diagnosis of Major Depressive Disorder), her presentation during follow up was highly inconsistent with either of these two conditions and was more in line with Abnormal Illness Behaviour. She was not co-operative with psychiatric treatment nor was she motivated to get better. She appeared to be holding to her symptoms and reluctant to take medications in case she loses her symptoms. Her reported side effects from Zoloft, Lovan and Efexor were inconsistent and I doubt that she took these medications for the periods of times which she reported. (b) Attempts to engage her in Cognitive Behavioural Therapy or behavioural change were also unsuccessful because of her lack of co-operation, irregular attendance and fixation on her symptoms. I asked her to complete Beck Depression Scale on three different occasions over the past eighteen months (4.2.05, 28.4.05 and 17.7.06) and I was surprised to see that her score remained exactly the same at 49, indicating severe depressive disorder. This is highly unlikely to occur even with genuinely depressed people because symptoms of depression would vary in range, intensity and magnitude over a period of eighteen months. Prognosis and Psychiatric Impairment (a) Two and a half years following the loss of her son, Mayada continued to complain of persistent depressed mood, lack of energy and poor coping. She has not been motivated or co-operative with psychiatric treatment. Her condition has not stabilised as yet. Her symptoms are likely to resolve to a substantial extent once the current legal proceedings are finalised. (b) I do not feel that further psychiatric treatment is likely to impact much on her overall prognosis or general outcome." 66 Mrs Saad was referred by Dr Haddad to another psychiatrist, Dr Burke, on 14 November 2006. Dr Burke saw Mrs Saad on a couple of occasions. His report is dated 16 May 2007. His consultations with Mrs Saad took the form of grief counselling. His conclusions in relation to Mrs Saad were as follows: "In summary, I consider that Mrs Saad developed a Complicated Traumatic Grief Reaction following the death of her son, Anthony, on 15 November 2003 and that this has gradually merged into a Major Depressive Illness. Features of Post Traumatic Stress Disorder are also present although they do not fully satisfy the DSM IV criteria for this diagnosis. With regard to the question of nervous shock, I consider that Mrs Saad has never recovered from the intensely traumatic emotional experience she suffered when searching for her son on the day he died, this ending in her realisation that he had drowned on hearing a remark to that effect made by the ambulance officers." 67 Dr Burke disagreed with the diagnosis and assessment of Dr Benjamin. He thought that there was still a reasonable chance of improvement in the condition of Mrs Saad but was not as confident as Dr Benjamin that her condition would completely resolve. 68 The opinion of Dr Benjamin is similar to that of Dr Lewin who saw Mrs Saad on behalf of the defendant. The conclusions of Dr Benjamin accord more closely with my observations of Mrs Saad than do those of Dr Burke. Although she did appear to be genuinely distressed when giving her evidence, there was an element of exaggeration in her presentation. She said that the house in Terrigal was sold as a result of Anthony's death whereas cross-examination revealed that the house was already on the market when Anthony died. 69 Having said that, it seems to me that the condition of "abnormal illness behaviour" diagnosed by Dr Benjamin is a recognised psychiatric condition and it is causally related to the death of Anthony. Accordingly Mrs Saad has suffered nervous shock and the effects of that nervous shock are still continuing. It is, however, likely as Dr Benjamin concludes that Mrs Saad's condition will significantly improve when these proceedings have concluded.

70 Under the Civil Liability Act damages for non-economic loss can only be awarded if the severity of the non-economic loss is at least 15% of a most extreme case. The maximum amount of damages ($427,000) is to be awarded only in a most extreme case. For the reasons set out in the reports of Dr Benjamin and Dr Lewin and because Mrs Saad has been significantly disabled by her condition for over 3 ½ years and is likely to be disabled for a further 12 months, I assess her non-economic loss at 20% of a most extreme case, ie $14,945. 71 At the time of Anthony's death Mrs Saad was operating a mixed business. The business was becoming profitable and had been trading well in the three months leading up to Anthony's death. This profitability is confirmed by the fact that in 2002 $29,000 was paid for the business and it was sold in December 2003 for $55,000. 72 I am satisfied that had Anthony not died, Mrs Saad would have continued working as a shop assistant probably in her own business, except for those periods during which she was unable to work because of her pregnancies. Those pregnancies would have taken her out of the workforce for at least six months. 73 Allowing for the increasing profitability of the shop, it seems to me that the past economic loss suffered by Mrs Saad as a result of her nervous shock should be calculated at the rate of $400 net per week for three years, ie $62,400. 74 In relation to the future, I am satisfied that Mrs Saad will be able to return to work as a shop assistant within the next 12 months. It seems to me that her future loss of earning capacity should be calculated on the same basis as the past, ie $20,800. 75 In relation to medical expenses I accept that $3,137.90 has been incurred by Mrs Saad in respect of her illness and that she is entitled to be reimbursed for that amount. I am not persuaded that following this judgment she will incur any further medical expenses in relation to the treatment of her condition. 76 Had Mrs Saad been successful in establishing liability, the damages which I would have awarded to her would have been as follows: Non-economic loss $ 14,945.00 Past out-of-pocket expenses $ 3,137.90 Past economic loss $ 62,400.00 Future economic loss $ 20,800.00 Total $101,282.90

Mr Saad - Nervous Shock Claim 77 Mr Saad was born on 1 July 1950. He was 57 at the time of trial. He had been previously married and had three children as a result of that relationship. Those children are now adults. On 15 November 2003 at about 1.25pm, he received a phone call from his sister-in-law advising him that Anthony was missing. 78 Mr Saad went to the Terrigal Beach area and joined in the search for Anthony. Shortly before 3pm he was told that Anthony had died. He saw Anthony in the ambulance and this upset him greatly. He was still grieving for his son even though three and a half years had passed. He was taking Valium each night before he went to bed and when he became upset or nervous. 79 Despite these feelings, Mr Saad had taken over the running of the household and looking after Kirsten because his wife was too upset to do these things. As of the date of trial he continued to care for the home and look after the children. 80 Mr Saad had not worked for 2 ½ years before Anthony's death except for helping his wife from time to time in the mixed business. He has not worked since Anthony's death. This has caused great financial difficulty for the family. The family has been living on social service benefits since Anthony's death. 81 Mr Saad consulted Dr Lau in January 2004 and was seeing him on a regular basis until June 2005. He consulted another GP, Dr Haddad, in April 2005 and has been seeing him on a regular basis since then. Dr Lau referred Mr Saad to Dr Benjamin for psychiatric assistance. 82 Mr Saad was seen by Dr Benjamin for the first time on 4 February 2005. He has continued to see Dr Benjamin on a regular basis since that date. He complained of irritability, lack of energy and social withdrawal. Dr Benjamin diagnosed Mr Saad as suffering from a grief reaction. He considered a diagnosis of Adjustment Disorder with Depressed Mood, but did not make that diagnosis. Dr Benjamin's prognosis was as follows: "(a) More than two and a half years following the death of his son, Sarkis continued to visit the cemetery at least twice per week. He coped with the activities of daily living reasonably well and he cared for the two children when his wife was unable to do so. He remained angry and he continued to be fixated on the legal process. (b) Mr Saad's psychiatric condition has not stabilised as yet. It is unlikely that further psychiatric treatment would impact on his mental state or improve his general outcome. His mental state is likely to resolve once the current legal proceedings are finalised." 83 Dr Lewin, psychiatrist, saw Mr Saad on two occasions, 3 November 2005 and 29 September 2006, on behalf of the defendant. Dr Lewin concluded that Mr Saad had experienced a range of ordinary grieving responses but did not suffer from any psychiatric condition. Dr Lewin particularly noted Mr Saad's ability to care for the home and family. Dr Lewin concluded that there was no psychiatric condition which prevented Mr Saad from engaging in employment. 84 The conclusions of Drs Lewin and Benjamin accord with my assessment of Mr Saad. He did not appear to me to be suffering from any recognised psychiatric condition. He was still sad because of the loss of his son but otherwise appeared alert and fully responsive to the questions asked of him. His demeanour and presentation was in stark contrast to that of Mrs Saad. 85 I am not persuaded that Mr Saad suffers from any psychiatric condition which would entitle him to damages for nervous shock. It follows that he is not entitled to any damages for non-economic loss or for medical expenses, either past or future. I note that no claim for economic loss was made on his behalf.

Orders 86 The orders which I make are as follows:

(ii) I order that the plaintiffs pay the defendant's costs of the proceedings. **********

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