Scarf v State of Queensland & Anor [1998] QSC 233

Supreme Court of Queensland|1998-10-30|Before: Mr P, White J

1 The plaintiff is a 29 year old man who sustained serious spinal injury on 25 September 1990 when he was almost 21 years, after diving head first from the guardrail on the Tallebudgera Creek bridge into the water below. As a consequence of his injury the plaintiff suffers from complete tetraplegia. A four lane highway which is the main north-south east coast of Australia road, passes over that bridge. The plaintiff gave instructions that he sustained his injury on 24 September and that date appears in the original pleadings and in many of the medical reports when the information was obtained from him. The pleadings have been amended to reflect the correct date and nothing turns upon it, but is mentioned to explain the discrepancy in some of the reports.

2 The plaintiff has sued the State of Queensland as representative defendant, for the Commissioner of Main Roads and/or the Director-General, Department of Transport, in whom property in the bridge/road was vested pursuant to s.8 of the Crown Proceedings Act 1980, for failure to erect signs warning of the dangers associated with diving from the bridge or signs prohibiting diving and/or failing to erect a higher guardrail which would prevent such activity. There is no issue about the identity of the first defendant and it is convenient to refer at times to the Commissioner or to Queensland Transport, or simply to the first defendant.

3 The plaintiff has sued the Council of the City of Gold Coast ("the Council") as second defendant essentially for failure to erect warning signs alerting him to the dangers associated with diving from the bridge consequent upon its alleged powers in respect of this road and its occupation of a nearby recreational area.

(a) Tallebudgera Creek Bridge, its History and Recreational Use

(d) Knowledge of the Defendants about the Recreational Use of the Bridge

(b) Would a Higher Guardrail Have Made a Difference?

(d) The Statutory Functions and Powers of the First Defendant

(f) Did the Defendants owe the Plaintiff a Duty of Care?

(i) What Ought to have been the First Defendant's Response?

(a) Pain, Suffering and Loss of the Amenities of Life

(j) Past and Future Loss of Superannuation Benefits

(a) The Tallebudgera Creek Bridge, its History and Recreational Use

5 Those who have seen Tallebudgera Creek and its surroundings at the site of the bridge as it runs towards the sea would be likely to describe it as a charming and most attractive place. On the north side from the bridge to the ocean is a heavily treed National Park. On the southern bank near the bridge is a popular sandy beach with nearby amenities provided by the Council including a caravan park, amenities block, parking and lawns (exhibit 1, photograph no.1). As the aerial photographs (exhibit 45) show, the surrounding areas are otherwise heavily populated.

6 The Tallebudgera Creek at the point of the bridge is a wide tidal watercourse a short distance from the Pacific Ocean (exhibit 1, photograph no. 1). At high tide the level of the creek is about 5 metres below the level of the bridge. The bottom of the creek consists of shallow sandy shoals for about three-quarters of its width from the southern bank with a deeper channel on the northern side. The northern side of the creek is confined by a vertical rock face or wall which extends several metres above the waterline (exhibit 1, photographs nos. 2 and 3, exhibit 44). The location of the channel is usually able to be seen by an observer on the bridge and the shallower sandy bottom is clearly visible across the width of the bridge even at high tide. The configuration of the creek, its sandy shoals and the channel can be seen in aerial photographs taken in 1997 (exhibit 45). The normal width of the channel, according to Mr Patterson, an expert in coastal management engineering, is 60 metres plus or minus 5 metres, but in 1990, as a consequence of two episodes of flooding the main channel appeared to widen out to about 90 metres on the southern side which was deeper than the sandy shallows but shallower than the channel proper. This factor plays no part in this accident.

7 From the late 1930s a bridge spanned Tallebudgera Creek in the same position as the southbound lanes of the present bridge. That bridge had a timber deck supported by a reinforced concrete pylon substructure with one lane of traffic in each direction. The Department of Main Roads constructed a new bridge to the west of the old bridge in the late 1960s which now carries the two northbound lanes of traffic. The old bridge was then demolished and the present southbound lanes constructed in its place joined as one bridge with the northbound lanes. The new bridge is approximately a half a metre higher than the old bridge. The old bridge had a guardrail on both sides constructed of joined water pipes with a mid-rail which can be seen in a photograph (exhibit 4) taken in 1968 when construction of the new bridge had just commenced. The present bridge has concrete pylons with a concrete deck on which is laid the four-lane highway. There is a pedestrian footpath on each of the eastern and western sides of the bridge.

8 There was no evidence about the original guardrails of the present bridge but by 1983 they required maintenance and apparently looked unsightly. They were replaced towards the end of 1984 by the Department of Main Roads at the request of the Council at an estimated cost of $87,909 (exhibit 35). The rails are approximately 1,140 millimetres high supported on posts approximately 110mm x 70mm at approximately 1,800mm intervals. The top and bottom rails measured 50mm x 30mm in cross section. The vertical balusters were measured at 25mm square at 150mm centres fitted between the top and bottom rail. The top of the rail measured 970mm above the top of the bottom rail. Photographs and sketches in Dr F Grigg's report (exhibit 31) illustrate the guardrail. A narrow ledge, which does not appear to have been measured, extends the bridge deck beyond the rails.

9 The guardrail is of aluminium alloy and complies with the requirements of the Australian Roads Bridge Design Code 1992 cl 1.6. It is not suggested that it did not comply with the relevant codes in 1990. Overhead light poles are positioned at regular intervals fixed to the external thickness of the bridge deck outside the guardrails.

10 The channel runs approximately between the first and second light poles from the northern end of the bridge as seen in several photographs but most clearly in photograph 2 of exhibit 1 and the aerial photograph, exhibit 45. The plaintiff dived into the creek from the top of the guardrail on the eastern side of the bridge next to one or other of those light poles.

11 At the time when the plaintiff was injured the channel had a depth of approximately 5 metres. Mr Patterson assessed the tide level at about the time when the plaintiff said he dived into the creek at about 10.45 a.m. as +0.3 to 0.4 metres above the main tide level and rising. High tide was approximately 12.30 pm. The current would have been travelling upstream and readily discernible to anyone observing it. The plaintiff said that the tide had peaked when he dived, but nothing turns on this and he may have been mistaken as to the time when he left the beach.

12 Mr Cameron is an engineer who had supervised repairs to the old Tallebudgera Creek bridge in the late 1950s when he was an employee of the Department of Main Roads. He recalled the bridge being used for recreational purposes going back to the late 1930s. He swam in a popular swimming hole downstream from the old bridge and recalled that it was a reasonably popular pastime for mainly young boys to go on to the bridge and jump into the water, although he had not done so himself. He did not remember seeing any person dive into the water from the bridge. Whilst Mr Cameron was working on the bridge in the late 1950s he noted that it was still a popular pastime for boys to walk on to the bridge and jump off into the water below. He did not recall seeing any person jump from the guardrail but pointed out that the rail, being constructed of narrow piping, did not give a secure foothold.

13 Mrs J Browning had been a member of the Neptune Royal Lifesaving Club from 1954 to 1960 as a young girl and from 1989 to 1992 as a adult. The club conducted patrols between 10.00 am and 4.00 pm at Tallebudgera Creek on the southern beach during the weekends from about September to Easter. From her answers it was not clear whether this occurred only during school holidays or on weekends other than those in school holidays but that is of no moment. Mrs Browning attended at the club approximately each second or third weekend. She could observe from the patrolled beach thirty or more people on "good" weekends, depending on the state of the tide, diving or jumping from the bridge into the water. The same people jumped or dived more than once and she agreed that there could be up to 200 to 300 jumps per day. The people diving or jumping were in the main aged from about 9 years and into their teens. She saw some of these young people jump from the decking of the bridge outside the railing and some from the top of the guardrail. She did not ever see any person dive headfirst from the top of the guardrail into the water. The bridge was "out of bounds" for those associated with the lifesaving club "... because it was dangerous for children or anyone. There was a four-lane highway as well", (t/s 217 l.11). In hot weather there would be hundreds of people bathing on the sandy southern shore of the creek.

14 Mrs Browning recalled that there were signs warning people against jumping or diving off the bridge but could not remember where they were situated, that is, whether in the club area, on the beach, in the recreation grounds, at the approaches to the bridge or on the bridge itself, or what was written on the sign. No other witness mentioned the presence of signs and no records of either defendant suggests that there were any signs during the periods she attended the lifesaving club. She was not challenged that she may have been mistaken. A letter written to the district manager of the Department of Transport by the local member of Parliament dated 9 November 1994 stated that "a recent inspection of the Gold Coast Highway Bridge at Tallebudgera Creek has shown that there are no signs warning people of the dangers of diving from the bridge into the creek," (exhibit 30).

15 Mrs Browning recalled only one incident involving an injury caused by diving or jumping from the bridge and that she described as a would-be suicide jumping from the bridge into the water in the 1990s in the early evening.

16 Dr W E Davies, a consultant physician with the Spinal Injury Unit at the Princess Alexandra Hospital who had treated the plaintiff thought that the unit had had three patients who had sustained spinal injury after diving into Tallebudgera Creek from this bridge. When pressed he could account for only two - the plaintiff and a later injury which apparently had occurred at night and had features which would make it irrelevant for consideration here. Dr Davies was unable to identify the third case or whether it occurred before or after the plaintiff's injury and said of it:

"Yes, and there is a third one that I cannot find. I mean, everybody says there is but nobody can remember, so it might - that might be a mythology on the spinal unit, too, but all our staff say, "Oh, yeah, there was another one", and we can't remember who it was", (t/s 171 l.30 et seq).

17 The plaintiff had a long connection with Tallebudgera Creek and its surrounds as a holiday destination. He had surfed the ocean beach, swum from the sandy beach on the southern side of the creek and from the rocky northern side on numerous occasions since he was a young lad. He had fished, snorkelled in the channel, and was quite familiar with its topography and of the rocky northern face. He had jumped or dived from the bridge from the age of 13 or 14 years between 80 and 100 times. He calculated that figure by reference to eight to twelve holiday visits to the Tallebudgera Creek area with about six to ten dives or jumps from the bridge on each holiday. He had seen others engaged in that activity before he attempted his first jump and observed them doing so over the intervening years. He saw other people diving from the top of the guardrail and from the deck of the bridge. The attraction of diving or jumping from the top of the guardrail rather than the deck of the bridge was that he could "make a bigger splash if up the top, just depending on how [he] dived or jumped in", (t/s 67 l.35); "... it added a bit of fun," (t/s 138 l.18). He understood that the creek was tidal and the depth was dependent upon the state of the tide. He estimated where the deepest point in the channel was because it would be darkest. His evidence demonstrated that he understood the mechanics, in lay terms, of a dive into water from height and of the risks associated with dives into shallow water. He said he knew that a deep dive could result in hitting the bottom, or a dive across a pool might lead to hitting the side with his head if precautions were not taken, (t/s 102 et seq). He knew that the bridge was not there to dive from, (t/s 138 l.18).

18 On the morning of 25 September 1990 the plaintiff, who had been staying at a friend's caravan at the Palm Beach Caravan Park, went to the beach with a girlfriend at Tallebudgera Creek at about 9.00am to 9.30am. They left the beach at about 10.45am to 11.00am, parted, and the plaintiff continued by walking along the footpath on the bridge. He intended to walk over the bridge to Burleigh Heads towards the north. He was wearing shorts and shoes and had a towel, shirt and radio with him. On the spur of the moment, as he was crossing the bridge, he decided to dive off the bridge towards the north bank to wash suntan oil and sand from his body. He had not dived or jumped from the bridge that day but had done so a few days earlier.

19 He put his radio and clothes down on the footpath on the bridge and climbed onto the top of the guardrail using a light pole for balance. He was initially hesitant about which light pole he used. It will be recalled that the channel flows between the two northernmost light poles on the bridge. In evidence in chief the plaintiff said it was the second pole from the northern end of the bridge as shown in exhibit 1, photograph 2. In cross-examination he said he thought the photographs were deceiving and in re-examination said that that particular light pole seemed "a lot further along than what I thought it was where - I can't quite tell if this first pole is as close to the shore as it looks in the photograph" (t/s 156 l.48). When the plaintiff was shown exhibit 1, photograph 3, he was much more confident that he had dived from near the first light pole on the right in the photograph, that is, nearer to the northern bank of the creek. The plaintiff said the channel was just past the first light pole in photograph 3 (t/s 157 l.42) and indicated to the right. He thought he had the light pole he used for balance was on his left which would support his preference for the more northerly light pole as the point from which he dived. This placed him almost directly over the channel.

20 The plaintiff recalled that the tide was high and just starting to turn. He looked at the water and was unable to see the bottom. He dived with his hands outstretched and towards his left, that is, towards the rocky north bank (exhibit 1, photograph 3, and photographs 4 and 6 of exhibit 31). When asked by his counsel, Mr P Dutney QC, why he dived like that the plaintiff answered:

"Just a sort of silly phobia I have got about sharks and just being by myself, I thought once I dove in I would be able to get close - you know, I wouldn't have as far to go to shore" (t/s 26 l.45).

His intention had been, it seems, to dive as close to the north bank as he could, consistent with diving into the channel, climb out, walk over the rocks and up onto the footpath on the bridge to collect his belongings and resume his walk into Burleigh Heads.

21 The plaintiff said he did not dive straight down into the water but out on an angle. He recalls "a big bang" on his head and thought he might have either hit something on the bottom "whether it was the shore or a rock ...", (t/s 27 l.40). Subsequently the plaintiff was found to have scabs towards the back of his head consistent with striking a hard or sharp object other than sand (which would tend to cause bruising) and which would have occurred if he had dropped his head whilst diving. The precise mechanism of his dive need not be established to resolve the issues of liability in this case. According to Dr Davies it is unlikely that the plaintiff's injury occurred other than by hitting the bottom or some object in the water which resulted in a compressive force to the top of his head. Dr Davies said that there was much less chance of spinal injury by jumping feet first than by diving head first into the water. Although he agreed that logically the higher the start of the dive the harder the impact, he seemed to suggest that the difference in height between the top of the guardrail and the deck of the bridge on the speed and force of impact would be negligible (t/s 174 l.44 et seq.). This is borne out by the diving studies discussed in Dr Grigg's report (exhibit 31) where a diver's technique was isolated as the overriding factor in determining whether a diver would impact with the pool bottom with sufficient velocity to cause cervical spine injury (p.11 of the report).

22 The plaintiff floated to the top of the water face down, opened his eyes and was unable to move his limbs. Just as he was taking in water an unidentified bystander entered the water and turned him over. The plaintiff said he gave instructions to remain cradled in the water pending the arrival of an ambulance because he knew he had "done some sort of damage to myself", (t/s 27 1.32).

23 Dr D Grant, a psychiatrist, saw the plaintiff on 2 September 1993. He gave evidence from the notes which he took on that occasion which were consistent with what appeared in his report and was unchallenged.

"He told me that the accident occurred on 24 September 1990 and that he was in the habit of jumping or diving off the bridge at Tallebudgera into the creek, that he had done that on many occasions in the past, that on this occasion he dived into the creek, but didn't dive straight into the deep channel, went to one side and hit a rock underwater. (t/s 311 l.40 et seq).

The plaintiff must have made some error of judgment in carrying the planned dive into execution. One factor it has been submitted would have impacted upon the plaintiff's dive. Either the night before he was injured or the night previous to that he admitted that he had been drinking heavily and smoking marijuana. When he was admitted to hospital he was found to have alcohol in his blood. It seems likely that this excess occurred the night before because of the blood alcohol on admission to hospital and the plaintiff 's recollection that he was not hung over that morning because he had had a good sleep and a big breakfast. He had consumed a dozen or so drinks of bourbon and coke followed by a shared half-size bottle of spirits and had had 4-6 cones of marijuana through the evening. The residual affect of this ingestion, the defendants submitted, would have been likely to have impacted adversely on his judgment in carrying out the dive. See also Blanksby et ál (1997) Aetiology and Occurrence of Diving Injuries - A Review of Diving Safety, in Sports Medium 1997 April 23(4) pp. 228-246 quoted by Dr Grigg at p.11 of his report. The plaintiff suggested, as best his answer can be understood, that he was not "blotto" after his "big" night, (t/s 49, l.45). The plaintiff's mother said she thought that he was not the sort of person who would be likely to put himself at risk if he perceived a danger but this maternal insight must be set alongside his excessive consumption of alcohol, tobacco, marijuana, amphetamines and LSD from an early age and his recorded driving whilst under the influence of alcohol.

(d) Knowledge of the Defendants about the Recreational Use of the Bridge

24 The property in the bridge was vested in the Commissioner of Main Roads and/or the Director General of the Department of Transport at the relevant time. The Tallebudgera Creek at that point was the responsibility of the Department of Transport (exhibit 48). There was no evidence of any injury to any person prior to the plaintiff's injury resulting from jumping or diving from the bridge apart from Dr Davies' evidence about "the third person" which I have already mentioned. Officers of Queensland Transport engaged in computer and manual searches through its records and found no reference to any complaints or concerns about the practice of diving or jumping from the bridge into the creek other than the letter from Mrs Ganim MLA (exhibit 30) in 1994, to which I have referred. It must be inferred, however, that the Commissioner through the officers of the Department, for example Mr Cameron, knew or ought to have known of the recreational use that was made of the bridge.

25 The Council similarly had no knowledge of any incident involving a person being injured as a result of jumping or diving from the bridge prior to the plaintiff's injury but it may also be inferred that through its employees it knew of that activity.

26 The case for the plaintiff against both defendants is based on two omissions and one positive act, namely, a failure to erect signs warning of the danger of or prohibiting diving from the top horizontal rail of the bridge to the creek; and/or having a guardrail of insufficient height to deter or prevent persons from climbing onto the horizontal rail; and/or having the top rail of such a design as to provide a natural platform from which to dive. In order to succeed the plaintiff must prove, apart from an obligation to take care, and breach of that obligation that more probably than not if a sign had been erected warning about or prohibiting diving, or had a higher guardrail and/or a different top rail been erected, he would not have suffered the loss which he has, Hallmark-Mitex Pty Ltd v. Rybarczyk C.A. 11009 of 1997 per Chesterman J at p.10 of his Honour's reasons.

27 The defendants maintain that whether signs had been erected or a higher guardrail installed the plaintiff would have been undeterred since he had determined to enter the water from the bridge. It is convenient to deal with the factual bases for those submissions now and to come to some conclusion before embarking on the question of whether the defendants or either of them owed the plaintiff a duty of care and if so whether they breached their obligation by omitting to erect signs, heighten the guardrail or having in place the top of the guardrail as a platform. Dr Ian Lynagh, a psychologist, and Dr Grant took an extensive pre-injury history from the plaintiff concerning behavioural and social matters. The plaintiff frankly accepted his past when giving his evidence and did not challenge the doctors' recital of the history given to them. He gave the appearance, when giving his evidence, of being an easygoing and fairly open young man. His credit as far as his evidence was concerned was not greatly challenged.

28 The plaintiff's parents separated when he was about ten or eleven and this had a very adverse effect on him leading to serious behavioural problems. He told Dr Lynagh that this resulted in him being "shuttled back and forth between parents" (exhibit 7, p.2) but his mother was his main carer. She had remarried and there was no evidence of undue conflict with his stepfather. The plaintiff is the eldest of one sister and two brothers who, so far as the limited evidence went, did not seem to be as affected by the parental separation. He said he was "in and out of home" from 16 years and that he "was kicked out" of home. He was in that state when he sustained his injury, and had spent the intervening years living with a girlfriend and travelling north to Port Douglas with friends. He regularly truanted from the several schools which he attended leaving part-way through Grade 9 for good. His parents sought the assistance of the Juvenile Aid Bureau and the Child Guidance Clinic to deal with his truancy and behavioural problems. The plaintiff said he did not like school and rebelled against all authority figures. He told Dr Lynagh that "I was a problem child ... I could never take discipline off anyone", ibid.

29 He started smoking cigarettes at the age of twelve and was a consistent user of alcohol from about the age of fourteen. He told Dr Grant that he had memory blackouts as a consequence of heavy drinking. He was a heavy user of marijuana, used methyl amphetamines intravenously and "a lot" of LSD but stopped when he "had a bad paranoia trip", (t/s 78 l.12).

30 The plaintiff had a quite extensive criminal history as a juvenile. He was presented as an uncontrollable child on an application for care and control when he was twelve. At thirteen and fourteen he was dealt with in the Children's Court for stealing, unlawful use of a motor vehicle and receiving stolen property. When he was fifteen he was dealt with for stealing and breaking and entering. He has an extensive criminal history as an adult. In July 1988 he was convicted at the Mossman Magistrates Court of stealing and false pretences with respect to the theft of a friend's video recorder and pawning of it in Rockhampton. He was placed on probation for six months and ordered to pay restitution. He moved from Rockhampton to Port Douglas and whilst there committed four break and enter offences even though he was then in employment. He failed to appear in the Mount Isa Magistrates Court in respect of those charges and a warrant was issued for his arrest. On 1 March 1989 he was dealt with in the Beenleigh Magistrates Court for breach of his probation and for failing to appear in the Mount Isa Magistrates Court. On 9 June 1989 he appeared in the Brisbane District Court in respect of the four charges of breaking and entering which he had committed in Port Douglas. He was placed on probation for a further 18 months, ordered to perform 100 hours unpaid community service and to pay restitution. He was dealt with in the Beenleigh Magistrates Court shortly afterwards for breach of the probation imposed in the Mossman Magistrates Court a year earlier.

31 The plaintiff was summonsed to appear in the Brisbane District Court in September 1989 for failure to pay the earlier restitution ordered by that court but failed to appear and a bench warrant was issued for his arrest. On 27 October 1989 the matter of his failure to report for community service was to be dealt with by the Beenleigh Magistrates Court but he failed to appear and another warrant was issued for his arrest. In November he was dealt with for two breaches of the Bail Act relating to two charges of driving under the influence of liquor and being an unlicensed driver. In March 1990 he was dealt with in the Beenleigh Magistrates Court for breach of his community service order which was revoked. The plaintiff was again summonsed to appear before the Brisbane District Court on 16 May 1990 for failure to pay restitution and a warrant was issued for his arrest for failure to appear.

32 It is a fair summary, as Mr Williams QC for the first defendant has submitted, that the plaintiff had been on probation for most of his adult life. His performance of the community based orders was very poor. He committed further offences whilst on probation. He had not paid any of the restitution sums or fines which had been imposed upon him and apparently had made no attempt to pay them and did not intend to do so. He regularly failed to appear in court when ordered to do so.

33 The plaintiff was cross-examined about an incident in July 1989 involving the attempted forceful recovery of a sum of money provided to another person to purchase drugs. The plaintiff accompanied a friend who had provided the money and who was armed with pick-axe handle to be a helper if required. In the ensuing confrontation the friend was shot dead.

34 The plaintiff received verbal warnings about his failure to attend to his community service and failure to report to his probation officer. Mr Williams asked him:

"You had a long history of ignoring warnings, didn't you? --Sounds like it.

You just did what suited you, didn't you? --Yes, it sounds like it. Well, that rebellious streak you had from when you were a 12 year old child had continued into your early adulthood. If you wanted to do something, you did it regardless of the consequences. Isn't that right? --Yeah, I suppose." (t/s 89 l.29)

35 The plaintiff's employment history, which will be discussed in detail later, suggests a person who had difficulty in responding to discipline. He was dismissed from his first job after some months. He took factory jobs one of which lasted one day, he told Dr Lynagh, because he did not like it. He did not enjoy working indoors. He undertook itinerant labouring jobs but told Dr Lynagh and confirmed in evidence that he liked big breaks especially in the summer because he could not handle the heat.

36 Dr Lynagh undertook psychometric testing of the plaintiff over some four visits. He concluded "Behaviourally, he lacks self discipline and is inclined to be expedient, to disregard rules and act without restraint," (exhibit 7, p. 4).

37 As has been mentioned there is little basis for concluding that there were signs warning of the dangers of diving or prohibiting diving from the bridge prior to the plaintiff sustaining his injury. Mrs Browning recalled signs but could not say when, where located or their content. Nothing was revealed from the first or second defendants' disclosure of documents. Since Mrs Browning said that the bridge was "out of bounds" for the members of her lifesaving club it may have been that the signs she recalls, if her recollection is accurate, were associated with the club. Curiously, the written submissions of the first defendant state "it is conceded that such signs were erected", p.29. The plaintiff said that he saw none.

38 The most relevant study about warnings in Dr Grigg's report appears at para 6.2:

Wogalter et al (Reference 2) examined the factors governing the effectiveness of warning signs, through a series of controlled laboratory experiments, rating experiments and field studies. They found:

i) For greatest perceived effectiveness a warning should consist of:

ii) A low cost of compliance adds to a warning's effectiveness. That is, if compliance with the warning is not too difficult or requires little effort, people are more likely to comply.

iii) Salience (or flamboyance) adds to a warning's effectiveness.

iv) "...the greater the hazard, the greater the perceived effectiveness of the sign. Perhaps people are more motivated to comply with warnings that concern very serious hazards."

v) "Even if a warning is salient, informative, and concise, it will not necessarily be effective. People may see a warning, read it, and yet not comply with it."

No warning signs used in the experiments discussed in this paper were 100% effective."

39 The only evidence advanced on behalf of the plaintiff as to the content of a warning so as to operate upon his mind and dissuade him from diving was from the following question from Mr Dutney:

"If there had been a sign, for example, saying "Warning - you could be killed or seriously injured diving off this bridge", or something of that order would that have had any impact on you? --Yes ... well I obviously wouldn't have dived off there or jumped off there", (t/s 29. l.1).

The plaintiff said in cross-examination by Mr Morris QC who appeared for the Council that he would have heeded a warning which said "no diving" because "there was obviously a danger", t/s 140 l.50. Whilst it was not submitted that the plaintiff was deliberately dishonest in his answers, they were given with all the knowledge of hindsight and the serious nature of his disability. The weight to be given to those answers must be assessed against the kind of person the plaintiff was at the time he dived. There was no evidence about where a sign or signs ought to have been placed to have the desired effect. Dr Grigg, an engineer, whose report has been referred to and which was tendered on behalf of the plaintiff was not called. He undertook an inspection of the Tallebudgera bridge and other bridges, took the measurements to which reference has been made, and photographs, discussed other barriers and studies relating to the dynamics of diving and warnings.

40 There was no direct evidence given about the signs which have since been placed by Queensland Transport on the bridge prohibiting diving, but one photograph (no.10) in Dr Grigg's report (exhibit 31) shows a sign fixed to a light pole facing inwards at about double the height of the top of the guardrail. The photographs were taken in May 1998. It depicts a red circle with a red slash across it and a stylized depiction of a figure bending forward in a recognisable static racing diving position. Underneath in black block letters is written "NO DIVING". It appears from a number of other photographs (exhibit 31 nos. 1, 4, 5, 6, 8 & 9 and exhibit 44) that the sign has been placed on most of the other light poles.

41 The defendants submit that the plaintiff's personal history of defiance of authority and lawlessness together with the impetuous nature of his decision to dive off the bridge when he was walking across it militate against any conclusion that more probably than not he would not have dived from the top rail of the bridge.

42 As Demack J (dissenting) observed in Hornberg v Horrobin, CA No. 10477 of 1997 unreported decision of 18 September 1998, at p.12 of his reasons, the difficulty in a failure to warn case is that a significant event which "should" have happened in the past did not happen.

Had a sign been erected, of whatever content, on the bridge but only after the plaintiff had spent years as a youth jumping and diving from the bridge it is highly unlikely that he would have taken any notice at all. He had jumped or dived many, many times in complete safety and was familiar with the terrain and would have scorned a warning or prohibition. Had signs been erected many years past but generally disregarded then again it is unlikely that the plaintiff with his background would have taken any notice.

43 It was not the plaintiff's case that there was any obligation on the part of either defendant to patrol the bridge to ensure that no diving occurred. Although the plaintiff said that he did not think that it was a dangerous activity at the time, nonetheless he said that he would not have engaged in it had his mother been watching and conceded that it was, on reflection, a silly thing to do (t/s 69). I think it more probable than not that had a sign, even with as dramatic a content as was put to the plaintiff by Mr Dutney, been erected on every lamp pole the bridge it would not have deterred the plaintiff from diving into the water from the railing on the bridge on 25 September.

(b) Would a Higher Guardrail Have Made a Difference?

44 The plaintiff said that the guardrail was roughly around his chest in height or a bit below. In order to climb it he said "I am pretty sure I just stand on the bridge itself and just grab the top and just jimmy myself up, you know, just swing up on it", (t/s 29 l.24). He was asked in evidence in chief (to resolve a transcript problem from the previous day at t/s 291.34, pp. 63-4)

"Now, I asked you a question yesterday about what difference it might have made on the particular day you suffered the injury if the fence had been higher? --Yes.

Say, for example, shoulder height, or head height, or some higher height than the height you describe? --Uh uh.

Can you tell me again what difference, if any, that would have made? --Well, if it was, say, head height, it would have made me - would have made it a bit harder to get over or to get up on top.

What impact would that have had on your decision to dive on this occasion? --It might have deterred me a bit too, you know, to get up.

Why is that? --Well, just being a lot higher it would have possibly stopped me from wanting to stand up actually on the railing system, sort of thing.

So what would you have done, not dived or dived off - climbed over and dived or just kept walking? What impact do you think it might have had? --I mightn't have made the effort to go for a jump or a dive off at all.

... Is there some reason why you say you might not have made the effort? --I can't think at the moment, sorry", (t/s 68).

45 In cross-examination by Mr Morris the plaintiff conceded that although it was probably a bit of a struggle to climb to the top or over the guardrail when he was a 13 or 14 year old it did not deter him from jumping or diving off the rail. The following exchange then took place:

"And exactly the same situation applied when you were 21, that if there had been a fence that was actual shoulder height or your chin height or your head height, that wouldn't have deterred you from doing what you wanted to do? --I don't know. When you are a kid it is all part of the fun, I think.

But you had no reason to be doing this when you were 21, it was just part of the fun as well, wasn't it? --On other occasions, you know, it might, or something - you know, was all fun and that, but when I decided to dive at the time I did and done me injury, you know, I wasn't, I was just doing what I said I was doing [cleaning the sand and suntan lotion from his body].

... I suggest to you that when you think about it, when you think of the bother that you went to dive into the water, when you think of the effort that you took and the circumstances that you were in at the time, if you had had to climb a fence that was somewhat higher than the fence that was there, it wouldn't have made any difference at all? --I suppose it might not have" t/s 139.

In fairness to the plaintiff I thought that he seemed to be tiring by this time. He had given evidence during the previous day and answered these questions on the afternoon of the second day having been under cross-examination in the morning and may have been agreeing with Mr Morris out of fatigue. I do not wish to imply by this observation that Mr Morris cross-examined the plaintiff inappropriately. That was not the case at all.

46 The plaintiff had determined upon diving into the water to cleanse himself. He might not have done so had it involved too much inconvenience and difficulty for him but he liked doing it and said that it was fun. It was to him a more attractive means of achieving his object than walking around the bridge and slipping into the water from the rocks.

47 Had a 1.8 metre high (head high) guardrail been erected at the time when the bridge was first built it would have cost approximately $42,000. To do so at the present time would cost approximately $100,000.

48 There was evidence from the engineers about particular bridges where higher than the standard railings had been installed. None of them was a pedestrian-access bridge over water. The Gateway Bridge, not having pedestrian access, had originally been erected without any guardrails above a low concrete barrier. Because of a number of suicides from the bridge, railings were added of a height that was thought to deter such activity (exhibit 31, photographs 11-13). Even so, determined would-be suicides have climbed onto the roof of parked cars to gain access to the top of the railing. The Gateway Bridge has an extension mesh guard extending out from the ends of the guardrail to prevent access along the outer edge (exhibit 31, photograph 12). Higher railings have also been erected on some pedestrian walkways over railway bridges and freeway over-pass bridges, presumably to prevent objects being thrown below. There was no evidence of any more restrictive guardrail on any bridge in Queensland over a watercourse than in conformity with the Australian Roads Bridge Design Code.

49 Mr K Ross, an engineer with Kinhill Pty Ltd with an extensive experience in designing bridges, described the Tallebudgera Creek bridge as different from "all other bridges in the State" in that it was near a popular recreational area situated at diving height above an inviting swimming location. He was unable to say that in his experience any other bridge in the world which was used by vehicular traffic and pedestrians to cross water like this bridge had any higher barrier than a standard barrier to deter recreational diving or jumping.

50 Mr Cameron had investigated bridges extensively in Australia and overseas but apart from bridges with an attraction for suicides and risks of objects being thrown onto railway lines and highways he was unaware of any practice of designing bridges over watercourses with high fences and barricades at the ends to prevent recreational diving, jumping or fishing.

51 The engineers did not avert to any engineering difficulty in erecting a higher guardrail but they conceded that nothing would prevent a determined person from getting over a railing which was headhigh. It was accepted that children as young as nine were able easily to scale the existing guard rail of 1.140 metres which would be similar to a headhigh railing for a fully grown adult. A guardrail which would be effective to prevent a person from climbing over it would be constructed of chain wire with strands of barbed wire or razor wire at the top similar to a prison fence with extruding barriers at each end. Other possibilities included welding spikes on top of the existing rails and inclined extensions from the top railing. Risks of falling backwards onto the bridge or associated with an uncontrolled dive into the water were not accepted as significant if a higher guardrail were erected.

52 The evidence revealed that Queensland Transport's responsibilities extended to 2,559 bridges over declared roads in Queensland with a total length of 140 kilometres. Of those bridges 2,175 were on declared roads over watercourses with a total length of 126 kilometres. As a matter of practical inference there must be other bridges over waterways of a divable height apart from the Tallebudgera Creek bridge which would be attractive. In evidence the Southport Bridge and the Hornibrook Highway Bridge were mentioned. To erect barriers of sufficient deterrence would be costly. The amenity to other users of the bridge - pedestrian and those in vehicles - would be affected. The pleasure associated with walking across the bridge would be substantially reduced if any of the deterring guardrails mentioned were implemented. Visibility from cars would be significantly reduced.

53 I conclude that a guardrail could have been installed which more probably than not would have deterred the plaintiff from diving in on 25 September. Of course the mere fact that a precaution probably would have saved an injured person from injury does not constitute its omission a negligent act, Commissioner for Railways v Hanna (1954) 28 ALJ 656 at 658 and this will be further discussed below.

54 The particular of negligence challenging the design defect of the top railing can be put to one side. It measured 30mm x 50mm. As can be seen in photograph 6 in Dr Grigg's report (exhibit 31) and photograph 5 of exhibit 1, it could not be described as a natural platform. Indeed the plaintiff said that he needed the support of a lamp pole for balance. The description of the top of the rail as "a natural platform from which to dive ..." appears to owe more to Nagle v. Rottnest Island Authority [1993] HCA 76; (1992-1993) 177 CLR 423 than to a practical appreciation of the railing.

(d) The Statutory Functions and Powers of the First Defendant

55 There have been numerous statutory changes relating to transport infrastructure and roads in Queensland since 1990 when the plaintiff was injured. It is unnecessary to trace those changes. Queensland Transport admits that it was and is responsible for the erection and maintenance of all signage relating to the bridge and that the bridge was and is located on a declared road and thereby under the jurisdiction of that department, exhibit 48.

56 The governing legislation at the time of the plaintiff's injury was the Main Roads Act 1920, s.17 of which provided:

"The absolute property and the land over which any and every declared road is proclaimed shall be vested in the Crown."

Property in fences, posts and erections placed upon a declared road belonged to the Commissioner of Main Roads. By s.9B of the Main Roads Act the Commissioner was empowered inter alia to compile, maintain and amend a Manual of Uniform Traffic Control Devices and to arrange for the installation of official traffic signs on any road, to publish information concerning the safe use of roads by pedestrians and generally to take steps to regulate traffic.

57 The Manual of Uniform Traffic Control Devices had the same meaning under the Main Roads Act as under the Traffic Act 1949. "Official traffic sign" derived its meaning from the Traffic Act 1949:

"... any sign, signal, marking, light or device, not inconsistent with this Act, placed or erected for the purpose of regulating, warning or guiding traffic the design of which and methods, standards and procedures in relation to which -

(a) are contained in the Manual of Uniform Traffic Control Devices;

A road is defined in the Traffic Act to include a bridge, a footway "open to or for use by the public or to which the public have access ...". Traffic is defined to include "the user by any person of any road ... or the presence thereon of any person."

58 It is common ground that at the time when the plaintiff sustained his injuries the Manual contained no sign which would prohibit diving or warn of the dangers or risks of diving. The Commissioner had power to amend the Manual. Without elaborate argument, Mr Williams submitted that it is questionable whether the Commissioner had power to prohibit diving on a declared road. Although not at the forefront of the functions of the Commissioner, nonetheless, the wide definitions of road and traffic suggest that the Commissioner had power to warn of the dangers of or to prohibit diving. Without more I am not prepared to hold that the Commissioner did not have such power and am supported in that conclusion by the erection of "NO DIVING" signs at least from 1997 by the Chief Executive of Queensland Transport who seems to be the successor of the Commissioner. I do, however, accept the submission that the power to erect such a sign does not necessarily infer that Queensland Transport as a highway authority was to be likened to the statutory bodies in Nagle and Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208 whose functions were to manage and maintain recreational places and facilities.

59 In 1990 when the plaintiff sustained his injuries s.12B of the Traffic Act 1949 provided:

"(1) Commissioner of Main Roads may install official traffic signs. The Commissioner of Main Roads may install on a road any official traffic sign and may remove from a road any official traffic sign.

(2) Local Authority may install official traffic signs. A local authority may install on a road in its Area which is not a declared road or on an off-street regulated parking area in its Area any official traffic sign and may remove from a road in its Area which is not a declared road or from an off-street regulated parking area in its Area any official traffic sign."

The Local Government Act 1936 which was in force at the time when the plaintiff sustained his injuries provided in s.49E

(1) The Local Authority may, subject to "The Traffic Act 1949 to 1965," install and remove official traffic signs and prohibit, regulate and control parking on any road or off-street regulated parking area in the Area.

(2) The Local Authority shall, subject to this Act, take all action necessary to give effect to the provisions of "The Traffic Act 1949 to 1965"."

"Saving powers of Local Authority. Save in so far as is inconsistent with this Act, every Local Authority shall have the same powers over the declared roads within its Area as it has over other roads within its Area.

A Local Authority shall not carry out any permanent works on any declared road or any works which are likely to affect the drainage, alignment or pavement of any declared road, unless it shall obtained the prior approval of the Commissioner to the execution of such works."

Regulation 126 of the Main Road Regulations 1987 provided:

"Signs for the information of traffic. The Commissioner or a Local Authority at the request of the Commissioner may construct, remove, make, mark, place, erect, fix or paint in, into or on declared road signs which are for the information of traffic."

At the time the plaintiff was injured "official traffic signs" as defined in the Traffic Act by incorporation in the Local Government Act, s.49E applied to a local authority.

61 I accept Mr Morris's submission that the Council was limited to erecting official traffic signs on roads other than declared roads and on declared roads but only at the request of the Commissioner. The Council therefore had no lawful authority to erect warning or prohibitory signs of whatever content on the bridge or the road approaches to the bridge.

62 It is not the plaintiff's case against the Council that it failed to request Queensland Transport to erect appropriate signs or failed to seek permission to do so itself or failed to request Queensland Transport to provide a higher guardrail on the bridge. The Council's liability to the plaintiff falls to be considered by reference to any obligation it might have had to erect warning signs on land which it controlled adjacent to the bridge.

(f) Did the Defendants owe the Plaintiff a Duty of Care?

63 That there was a foreseeable risk of injury of the kind that occurred to the plaintiff from diving from the bridge cannot seriously be disputed. Those controlling the life saving club thought so, the plaintiff would not have done so in front of his mother and common sense would suggest so. The fact that there was no recalled case of injury of any kind over 50 to 60 years does not thereby mark out the risk as far fetched or fanciful, Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at p.47. It simply had never been realised. The foreseeability of injury does not answer the question whether the defendants owed a duty of care to the plaintiff by virtue of their control over the bridge in the case of the first defendant and control over recreational areas near its bridge, in the case of the second defendant. That will be resolved by the application of the ordinary principles of negligence, Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. It is convenient to dispose of the liability of the second defendant first.

64 The plaintiff places reliance upon Nagle v. Rottnest Island Authority in as much as the Council's duty of care is said to flow from its encouragement to people to come to the area. There are features about Nagle which are quite different from the circumstances here which can be readily appreciated from this passage in the judgment of the majority (Mason CJ, Deane, Dawson and Gaudron JJ) at p.430:

"As stated earlier, the Board [the successor to the Authority] was the occupier of the Reserve and was under a statutory duty to manage and control it for the benefit of the public. Moreover, the Board promoted the Basin as a venue for swimming and encouraged the public to use it for that and other purposes by installing, maintaining and servicing various facilities on that part of the Reserve which was immediately adjacent to the Basin. In these circumstances, it is beyond question that the Board brought itself into a relationship of proximity with those visitors who lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable risks of injury to which they might be exposed. In this case, the basis for holding that the Board came under a duty of care may be simply stated: the Board, by encouraging the public to swim in the Basin, brought itself under a duty of care to those members of the public who swam in the Basin. As occupier under the statutory duty already mentioned, the Board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty would naturally require that they be warned of foreseeable risks of injury associated with the activity so encouraged."

In Nagle the diving activity commenced within the Reserve and ended beyond the boundaries of the Reserve. The majority held that there was no reason why the Board could not erect signs on the main platform warning of the danger which existed immediately beyond the boundaries of the Reserve, that being a danger to which swimmers, encouraged by the Board, would be exposed, at p. 432.

65 Here the Council occupied and controlled land near the bridge. By the provision of services such as car parking and toilet and changing amenities it arguably encouraged members of the public to bathe from the recognisably safe sandy beach on the southern bank of the creek. But it cannot be said that it thereby encouraged members of the public to leave the beach, walk along a four lane highway bridge and dive from it into the creek, a place over which it had no control.

66 Even if it be accepted, which I do not, that the Council had some such obligation in law to the plaintiff of the kind alleged, at a practical level the evidence did not reveal that the plaintiff would have seen a sign had there been one. Randel v Brisbane City Council (No.2) [1990] 2 Qd R 440 at p.454. The evidence did not trace the plaintiff's movements prior to going on the bridge except that he said he was staying at the "Palm Beach Caravan Park" (its location was not established) and after leaving the beach "went up to the main road", (t/s 24, 1l.24,50). If it be assumed, as seems reasonable, that the visit to the beach was somewhere along the sandy southern bank of the creek seen in photograph 1 of exhibit 1, the plaintiff and his companion may well have walked along the edge of the water until they reached the bridge and not seen any sign erected on any land occupied or controlled by the Council. As mentioned above, even if there were a sign warning of the danger of diving from the bridge (there is no suggestion that the Council had power to prohibit that activity), which the plaintiff might have seen, I have concluded that he would have disregarded it, or, by the time he reached the point on the bridge where he decided to dive, he would have ceased to recall it.

67 The plaintiff does not succeed against the second defendant.

68 Mr Williams submitted that the Commissioner was not an occupier of the bridge and that the Commissioner's role was limited to maintenance of the bridge and the regulation of traffic on it. The property in the bridge and all of its constituent parts was vested in the Commissioner by s.17 of the Main Roads Act. The absolute property in the land over which any declared road was proclaimed was vested in the Crown, ibid. Clearly the Commissioner exercised control over the bridge and pedestrians had the right to pass and repass over it subject to the exercise of any statutory rights of closure or exclusion. Brennan CJ observed in Romeo at p. 212:

"Neither possession or occupation of land is by itself a foundation for a duty of care owed to another who enters on land. The existence and extent of the duty of care depends upon the title of the other to be there, the object with which the other comes upon the land and the interest of the defendant in the other's presence."

In Hackshaw v. Shaw [1984] HCA 84; (1984) 155 CLR 614 Deane J stated at 663:

"All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of whom the visitor is a member."

The reasonable foreseeability of a real risk of injury may be sufficient to create a special relationship between the defendant in occupation or control of the place where the injury was sustained and a lawful entrant. See the concerns expressed about the failure of this area of the law to provide predictable outcomes detailed by Kirby J in Romeo at pp.225 to 226. The plaintiff as a member of the public was entitled to exercise his right to walk along the footpath or, it might be inferred, to lean upon the guardrail and look at the view. Without more, it might be assumed, the Commissioner's obligation was confined to keeping the footpath free of hazards and the guardrail in repair. The plaintiff, literally, stepped outside this relationship when he climbed the fence and dived from it. The Commissioner gave the plaintiff no encouragement to engage in this activity and had this dive been an isolated or infrequent occurrence, in my view, no relationship giving rise to an obligation to take care for the plaintiff's well-being would have come into being. This was not a place provided for recreation and takes the matter factually outside the situation in, for example, Nagle, Saroukas v Sutherland Shire Council (1992) Aust Torts Reports 81-149, Northern Territory v Shoesmith (1996) 132 FLR 138 and Romeo. However, the additional factor which, in my view, supplies the requisite degree of proximity and thereby gives rise to a duty of care was the longstanding practice, known to the defendant, over many years, for children, teenagers and young adults in significant numbers to use the bridge as a facility for entering the waters of Tallebudgera Creek. Notwithstanding that hundreds of safe dives had occurred over many years the potential for serious injury of the kind which occurred to the plaintiff was reasonably foreseeable. If the test enunciated by Dixon J in Aiken v Kingborough Corporation [1939] HCA 20; (1939) 62 CLR 179 at 210 in respect of the liability of statutory authorities to entrants and favoured by Brennan CJ in Romeo at p.215 were to be applied then a different result would, I think in this case, ensue. But the other members of the court made it plain that the approach of the majority in Nagle is the modern exposition of the law in this area.

69 The question then is what is the measure of care which the Commissioner ought to have accorded the plaintiff?

(i) What Ought to Have Been the First Defendant's Response?

70 The plaintiff was quite familiar with the topography of the channel, the sandy bank, the rocky northern bank and the fluctuations of the tide. He had dived into the channel from the bridge in previous days and was thus very recently familiar with it. He was almost 21 years of age and although his criminal, employment and educational history must suggest a degree of immaturity nonetheless it must be supposed that he brought to this activity the "experience, understanding of causes and effects," McHale v. Watson [1966] HCA 13; 115 CLR 199 per Kitto J at p.213 of a physically and mentally competent 21 year old. Nothing was suggested that would cause him to be judged by any lower or different standard.

71 Perhaps in light of strong criticism of the perceived extension of obligations on providers of public recreational facilities, for example, the members of the New South Wales Court of Appeal in Inverell Municipal Council v Pennington (1993) Aust Torts Reports 81 - 234, and the references in Kirby J's judgment in Romeo at p.226, in Romeo some members of the Court were at pains to emphasise that the duty is not of an insurer but to act reasonably, per Toohey and Gummow JJ at p. 220, per Kirby J at p. 234 and per Hayne J at p.240.

72 Toohey and Gummow JJ expressed the content of the duty in Romeo at p.220 as follows:

"Whether there was a breach of the duty of care owed by the respondent to those who came on to the Reserve depended on "the action that a reasonable person in the respondent's situation would have taken to guard against the foreseeable risk of injury which existed" (Nagle [1993] HCA 76; (1993) 177 CLR 423 at 431) An assessment of that action must be on the footing that the respondent had to take into account "the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety". (Nagle at 431) But this does not mean that the respondent was obliged to ensure, by whatever means, that those coming on to the Reserve would not suffer injury by ignoring an obvious danger."

"Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be "balanced out" before a breach of the duty of care may be found. It is here, in my view, that courts have both the authority and responsibility to introduce practical and sensible notions of reasonableness that would put a break on the more extreme and unrealistic claims sometimes referred to by judicial and academic critics of this area of the law. ... Precautions need only be taken when that course is required by the standard of reasonableness (Phillis v Daly (1988) 15 NSWLR 65 at 73, per Mahoney JA). Although it is true, as the appellant argued, that an occupier is not entitled to ignore safeguards against dangers because of the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier's assessment that the risks of harm were negligible."

"In judging both the need for, and possible effect of, a sign or other precaution, a court is entitled to take into account the plaintiff's own knowledge of the site and understanding of the risks involved as well as its own commonsense."

"What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration."

74 I am persuaded that the extent of the first defendant's obligation to a person in the position of the plaintiff would be discharged by the erection on the bridge of signs prohibiting diving as presently appears on the bridge and described at p.17 perhaps with the addition of the word "DANGER". Such a sign would remind those who had been diving from the bridge without incident in the past and/or who had seen others doing it, or those contemplating doing so for the first time, that it was an activity that ought not be engaged in.

75 Erecting a sign would not deter the more disobedient or adventurous of children and teenagers and young people generally. It would probably only be effective if patrols were maintained on the bridge at least during the summer months. There was no pleading calling for such a requirement and no evidence about it but it might be assumed to be unreasonable to require it. It would be expensive and the experience with public swimming pools, for example, Hornberg v Horrobin, would suggest not always effective. See also Randall v. Brisbane City Council (No 2) at p.453.

76 As I have concluded above, even had there been a sign of the kind described by Mr Dutney to the plaintiff or as presently appears on the light poles on the bridge, the plaintiff would have disregarded it. The plaintiff does not succeed against the first defendant.

77 I am by no means persuaded that erecting higher barrier railings is a reasonable response to the risk. Factors such as cost, bearing in mind the first defendant's responsibility for other relevant bridges which may attract swimmers throughout the State, that there had been no known injuries over decades of the activity, and the obviousness of the risk of injury for at least any adult contemplating diving, lead to this conclusion. There are other factors of amenity to bear in mind. Whilst the bridge itself is not a place of scenic beauty nonetheless it spans a particularly charming waterway and to have a high cage-like, climb-proof fence erected would destroy the pleasure and refreshment of pedestrians using the bridge and, presumably, interfere with the view from motor cars passing and re-passing over the bridge. This kind of bridge would be the only reasonably effective barrier. A head high guardrail would not deter the determined and I would include the plaintiff among that class on the 25 September 1990.

78 The first defendant has pleaded volenti in paragraph 9 of its amended defence. In order to succeed a defendant must establish that the plaintiff had knowledge of all the facts creating the risk, that he understood and appreciated the risk created by the particular facts and voluntarily undertook to run any risk associated with the activity which gave rise to the injury. In light of the conclusion reached on liability for negligence it is unnecessary to this defence, but I would think without reaching any firm conclusion that the facts are insufficient to support the defence.

79 Issues of contributory negligence are particularly difficult to assess in cases where the basis of liability is an omission to do something and even more so where the omission is a failure to warn. Saroukas is a case in point. I have concluded as a matter of causation, that no warning which it was reasonable for the first defendant to give would have been effective to prevent the plaintiff's injury. Had I not reached that conclusion there was one matter that might have called for consideration. The plaintiff said he deliberately angled his dive towards the rocks to shorten the period of time that he would be in the water. Further, he undertook the dive when, on my findings, he was, more likely than not, still affected by the ingestion of drugs and alcohol so as to affect his judgment. Had it been necessary to do so, I would have apportioned 35% of the liability to the plaintiff for failing to have regard for his own safety.

80 The plaintiff sustained a fracture of the fifth cervical vertebra with extensive fragmentation when he hit his head after diving from the bridge. A diagnosis of complete tetraplegia below the sixth cervical neurological segment was made. This resulted in paralysis of his hands, trunk and lower limbs. The plaintiff is presently in receipt of a disability support pension from the Commonwealth Department of Social Security. He lives in a house rented from the Housing Commission built for him as for a person who is wheel chair bound. He is provided with a carer for five hours a day for seven days a week by the Department of Families, Youth and Community Care.

81 The plaintiff was first admitted to the Southport Hospital on 25 September 1990 and then transferred to the Princess Alexandra Hospital's Spinal Injuries Unit where he remained for about twelve months. His initial treatment was neck traction through scull tongs on a tilting and turning bed. An in-dwelling urethral catheter was inserted which he continues to use to the present. He was sedated initially and has no clear recollection of the first few weeks in hospital. Thereafter he found the traction uncomfortable and the tilting bed distressing. The plaintiff had eight weeks of immobility and was then placed on a program of physiotherapy and occupational therapy. On 11 June 1991 a C4-5 vertebrectomy was performed to excise the damaged vertebra. Post-operatively he was again placed in traction which he said was worse than on the first occasion.

82 Once the plaintiff was mobilised into a chair he became something of a discipline problem in the Spinal Unit and despite the Unit's rules being brought to his attention regularly he broke them repeatedly by consuming alcohol, smoking marijuana and by abusing the hospital staff particularly using foul language to them. The alcohol and marijuana, I infer, were brought in for him by his brother, a friend or obtained from other patients on occasions. Dr Davies recalled him as a patient about whom "there was a fair amount of static" (t/s 175 l.8).

83 The plaintiff's family visited extensively at the Princess Alexandra Hospital until his discharge on 6 September 1991. He lived with his father and brother after discharge in a house partly modified for a wheelchair. He needed and still needs care with most aspects of daily living. He was and is unable to effect a transfer in/out of his wheelchair and cannot, accordingly, get himself into or out of bed. He needs assistance in dressing and undressing and in his bowel and bladder care. He can partially wash himself but needs assistance with other parts of his body. He can propel himself by hand in his wheelchair on flat, smooth surfaces. He is able to clean his teeth, sign his name and make a simple meal such as a sandwich if the makings are accessible and he uses modified cutlery. The plaintiff has little wrist extension function which could be observed when he drank water from a mug when giving evidence.

84 The plaintiff experiences pain in his arms and chest and through his legs which he describes as "very annoying". He used to smoke marijuana to relieve his pain on a daily basis after leaving hospital but tapered off his consumption towards the beginning of this year and uses it now only occasionally.

85 In 1992 he developed a significant depressive illness and was treated by a psychiatrist with counselling and anti-depressant medication. The symptoms took the form of panic attacks and involved suicidal thoughts and poor sleep patterns. He told Dr C Grey, the consultant psychiatrist at the Princess Alexandra Hospital who treated him, of family conflicts and boredom. The plaintiff has taken his anti-depressant medication intermittently giving it up when he feels better and returning to it when he feels unwell. He was described by Dr Grey as often non-compliant with respect to his medication and from time to time with follow-up visits at outpatients. His depression is well managed with medication and Dr Grey thought that his pattern for the future would be as in the past with periods of abstinence followed by a return to treatment when he felt sufficiently unwell.

86 The plaintiff had two admissions to the Princess Alexandra Hospital since his discharge in September 1991, on 24 February and 23 June 1992 respectively . The first related to urinary tract and upper respiratory tract infections and required four days' hospitalisation. The second was for a urinary tract infection and associated problems which required two days' hospitalisation. Although the plaintiff has been resistant to accepting medical advice that he have the indwelling catheter removed, Dr Davies concedes that the plaintiff has had, apart from the mentioned episodes, very few infections from that source. He does not wish to have the catheter removed because he does not want a urine collection bag or the operative procedure. Dr Davies said that this was a not unusual reaction in male patients and the risk of infection continued with a collection bag.

87 The plaintiff has a risk of developing pressure sores but has had good care. His major risk appears to be associated with his lungs. He smokes 10-20 cigarettes a day and this, according to Dr Davies, compromises his lung function and increases the risk of frequency and risk of upper respiratory infections becoming lung infections. Dr Davies estimated a loss of expectation of life for the plaintiff of 10-15 years but opted for the higher figure on the plaintiff's history of infection and his continued cigarette smoking.

88 The plaintiff was cared for by his father and brother at his father's house with second daily assistance from the Blue Nurses for about two years. His father had given up work to look after him. The plaintiff had had visits to his father's house for weekends whilst he was in the Spinal Unit. He moved into his present Housing Commission accommodation after he left his father's house and which was purpose-built for the plaintiff as a wheelchair occupant. The plaintiff does not like it and complaints that it is not a level site and that he cannot access the back garden either by going from the front or through the back doors. This latter problem is largely due, it seems, to the treads on the sliding doors which prevent his wheelchair exiting. He does not have an electric wheelchair but must propel himself or be pushed. He presently lives in this house with his sister and her boyfriend, their child, and his mother. When his sister left after a year or so his brother and his girlfriend came for a few months then other family members and a friend.

89 About eighteen months after discharge from the Hospital the plaintiff received funding for a carer whilst still living at his father's house, for an initial period of three hours per day which has been increased to five hours a day for seven days a week. This care is now provided by Audrey Wilson who comes in for four hours in the morning and his sister's boyfriend, David Dugler who lives in the house, who does an hour at night. Audrey Wilson assists the plaintiff to get up, bath and dress, do his exercises, his shopping and getting him a meal. The plaintiff's mother who suffers from a back condition is generally at home and undertakes housekeeping duties but is unable to lift the plaintiff.

90 Apart from the significant and serious disabilities associated with his injury the plaintiff's major problem seems to be boredom. He has had little formal education and tested with Dr Lynagh at a low-average general intelligence with basic literary skills. He said he would like a computer to access the Internet because it would take up a lot of his time. His social activities involve being taken by his brother to the local pub, betting on the horses, taking the dog for a walk and going to some rugby games. It seems that his family and pub acquaintances constitute the bulk of his social interaction. He goes shopping with his carer from time to time. The plaintiff on testing demonstrated deficiency in future planning and direction.

91 In the year after discharge the plaintiff attended the sporting wheelies gymnasium at Newstead with a friend but once the friend stopped going the plaintiff said he could no longer afford the taxi fares by himself. He then did some limited weights exercises at home. He participated in a university program at home last year which he says helped to motivate him back to exercising.

92 The plaintiff uses taxis to get around to engagements and appointments. He would like a greater choice of activities and the ability to access places he cannot go with his wheelchair. He would like an adapted van which someone could drive for him as he would be unable to drive it even if adapted because of his weak wrists.

93 The plaintiff would have liked to visit England where he was born and where his more distant relatives live had he not been injured. He also has an interest in taking a holiday to Asian countries.

94 As to his future accommodation, the plaintiff says that he would like to live on flat land of some acres developed so that he could get around in an electric wheelchair and keep dogs. He would like a wheelchair which enabled him to go "off road".

95 The plaintiff wishes to father a child. He has had relationships prior to his injury two of which resulted in pregnancies, one of which was certainly terminated. He is not sure about the other. He does not presently have a special relationship with any woman but has been close to one or two since his injury. Dr D Molloy, a gynaecologist specialising in infertility and reproductive medicine, said that the plaintiff's condition is such that he is unable to achieve sexual intercourse. Since he has a positive fertility history the normal method for achieving parenthood would be by electro-ejaculation and artificial insemination. If this did not work then resort would need to be had to an IVF program.

96 The plaintiff claims numerous aids and much equipment to alleviate his condition and its symptoms. Much of it is not contested by the defendants and those items which are will be considered in detail.

97 The plaintiff's evidence about his pre-injury employment was most unsatisfactory. He had retained no tax returns. No application to the deputy commissioner was made until after his records had been destroyed after the usual lapse of time. He and/or his advisors had not contacted past employers for any supporting evidence about his employment with them. His mother gave some assistance in evidence as she had, on occasions, obtained work for him and/or driven him to his employment. In his statement of loss and damage the following appears:

"Details of my employment and income during the three years prior to the accident giving rise to this claim are as follows:-

During this period I undertook employment with several employers as a trades assistant and a bricklayer's assistant. I am unable to recall the exact periods of such employment or my exact income, however I am able to recall some details of my employment. The following details relate to my employment during the period from 1 July 1986 until the date of the accident giving rise to my claim. I also undertook additional employment but am unable to recall the names of my employers, the periods of employment or my income from such employment." (exhibit 36).

The plaintiff then sets out some ten employers with approximate periods of employment and approximate income.

98 Some of the particulars of employment given in the plaintiff's statement of loss and damage are not consistent with histories given to, for example, Doctors Lynagh and Grant, Ms L Stephenson and Mrs H Coles, occupational therapists, as to the duration of employment and the names of employers. The plaintiff did not have the benefit of any documentary material to refresh his memory. As a consequence, the defendants were embarrassed in their efforts to investigate the plaintiff's particulars in his statement of loss and damage. The plaintiff expressed some surprise that of those past employers nominated only one could be traced who had any record of the plaintiff. The plaintiff's estimates as to the duration of his employment were quite often inaccurate. In evidence in chief he had estimated that he worked "6, 8, 9 months or so" per year and that the longest period of unemployment was "6 months or so", t/s 32 l.35 et seq. His explanation was that he did not like working indoors, did not like working in the heat and did not care to work during the hotter months.

99 He told Dr Grant that he was in work 50% of the time but agreed in cross examination by Mr Williams that he was on the dole for the whole of 1987, for 20 weeks in 1988, for 35 weeks in 1989, and for 36 weeks in 1990, including a period after his injuries before he changed to sickness benefits. The plaintiff said that he worked and received social security payments without informing the relevant department, at least in 1989.

100 The plaintiff's mother, Mrs Hawley, assisted the plaintiff to get his first job when he left school and other subsequent employment. She was able to verify his employment with 3 employers because she had helped get him that work and/or would often drive him to work and collect him afterwards. She did not give evidence as to the duration of these jobs. The plaintiff said that he had got jobs as a brickie's assistant through his father who had been a brick layer.

101 In the end, the only particularised proof of employment related to Capron Cartner Pty Ltd which was not mentioned in the statement of loss and damage but by Ms Stephenson. The plaintiff told her that he was employed for between 1 and 2 years with that firm but on investigation by the first defendant the plaintiff was shown to have been employed between 19 August 1985 and 12 February 1986. His employment was terminated, (exhibit 55). It was suggested that the termination might have occurred because of the amount of time off - 17 working days, numbers of which were a Friday and/or a Monday. The plaintiff did not dispute that he might have been having "long weekends".

102 It was submitted by Mr Dutney that the plaintiff would, in due course, have settled down to more regular working patterns as his 2 younger brothers have done. The evidence about them came from Mrs Hawley. She tended to be rather defensive about the plaintiff's rebelliousness and criminal history and said that she had no problems with him. The same was also true of her descriptions of her other children. This comment is not meant to be critical of her. I had no doubt that she gave her evidence honestly from her point of view. The other 2 boys had a slightly better educational record than the plaintiff and stayed living with their mother after separation from their father until their late teens. They then respectively went to their father's house to help look after the plaintiff when he left hospital. Neither of them had required counselling at the time of the marriage break-up or at any other time. They had had some minor brushes with the law in their mid teens but, it seems, not very serious ones. Darren has been in fairly constant employment in sales since leaving school and at trial was a fashion sales representative. Christopher has had a more mixed employment history with periods of unemployment. Mrs Hawley said of him t/s 234 l.48 et seq:

"Has he always been more or less continuously in work? --

Was that by choice or as a result of the economic climate? Did he want to work and couldn't find work? -

Oh, I think there are - would be times in all the boys' lives where there would be a time where they didn't feel like working and then there were times they would go out and look for work and get work."

103 The plaintiff's father did not give evidence. He had worked as a brick layer and had changed in more recent years to a more sedentary occupation. There was no evidence as to the duration or regularity of his employment. The plaintiff told Dr Lynagh that his father was a drinker and got aggressive but there was nothing to say whether this affected his employment. The plaintiff thought that he would have continued to look for work in the building industry until retirement at age 60.

(a) Pain, Suffering and Loss of the Amenities of Life, Past and Future

104 There is little dispute between the parties as to the appropriate sum under this head of damage. The plaintiff contends for $200,000, the first defendant for $180,000 and the second defendant for $160,000. The serious nature of the plaintiff's disability is not in dispute. There is no prospect of any improvement in the future. He has had to deal with physical pain and suffering which will be his lot for the rest of his life. In addition he has no comfort or distraction by being able to develop sedentary activities which could give him satisfaction had his personality and /or educational attainments enabled him to take pleasure in reading and writing (which could be done by means of a computer). He will be prone to periods of serious depression which, it is true, can be dealt with by appropriate treatment, but his personality profile is such that he seems destined to suffer significantly because of his injuries. I would award damages in the sum of $180,000. Interest should be allowed on $60,000 at the rate of 2% per annum which amounts to $9,600.

105 The plaintiff's loss of life expectancy has been reduced by nearer to 15 years than to 10 years, the range indicated by Dr Davies. The amount which should be allowed under this head is $3,000.

106 The agreed expectation of life for the plaintiff had he not been injured is 48 years. The plaintiff's future life expectancy should be based on a figure of 33 years. The defendants have submitted for 30 years on a reduced life expectancy of 18 years. However, there is no evidence of a shortening of the plaintiff's life expectancy other than that of Dr Davies and 15 years is used for calculation purposes.

107 Refunds are due to a number of entities and are not in dispute. They are:

* Refund to Princess Alexandra Hospital (exhibit 24) $133,936.00

* Refund to Medicare (exhibit 25) (replaced by letter from

plaintiff's solicitors of 21 October 1998) $ 7,623.15

* Refund to Department of Families, Youth & Community

108 The plaintiff has claimed pharmaceutical expenses in the sum of $2,666. They are not challenged by the defendants and are allowed.

109 He claims medical and equipment expenses in the sum of $2,905. They are not challenged by the defendants and are allowed.

110 He claims the cost of the hire of a hoist from Morris Surgical in the sum of $1,386. That is not challenged and is allowed.

111 In exhibit 36, the statement of loss and damage, the plaintiff states that he has spent approximately $40 per week on taxi fares which he claims from the date of discharge to the date of trial. In oral evidence he said that on average he spent between $20 and $30 on taxies for travelling associated with needs caused by his injury. His mother said that he was in receipt of a taxi subsidy which may explain the relatively low figure. In the light of that answer it seems fair to assess his past expenditure on taxis at averaging out at $25 per week. Over the whole period from the date of discharge on 6 September 1991 to date of judgment is 372 weeks. That amounts to $9,300 and is allowed in that sum.

112 A claim is made in exhibit 36 for mowing expenses for the past 12 months in the sum of $500. I am unable to find any reference to that in the evidence. The house in which the plaintiff lives is shared by his mother, his sister and her de facto husband although it would seem to be rented to the plaintiff. Mrs Hawley said that the household bills were shared, for example groceries, telephone, electricity "that sort of thing" t/s 226. I am not persuaded that the plaintiff has proved this loss.

113 The amount allowed for special damages is $310,885.24. Interest is allowed at 5% per annum on $16,257 being payments made by or on behalf of the plaintiff from discharge from the hospital which amount to $5,815.

114 The plaintiff claims the commercial cost of care provided to him by members of his family to judgment including visits to him whilst in hospital by his mother, father and siblings. The claim is for 8 hours a day from the date of admission until July 1991 and 3 hours a day between July and September 1991 when he was discharged. The balance of the claim concerns his home care for 21 hours per week. Both defendants submit that the visits by family members in hospital did not fulfil any need identified in the evidence. Mr Williams submits that the plaintiff's need for care has been met since he came out of hospital because the Department of Social Security has paid a non-refundable carer's pension to the plaintiff's parents.

115 The principle to be applied in respect of gratuitous care is as established in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 and explained in Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327. Mason CJ, Toohey and McHugh JJ at p. 333 stated the principle as follows:

"Consequently, it should now be accepted that the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J held, that the need is or may be productive for financial loss."

116 The leading case dealing with visits by members of the family of an injured person still seems to be Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523, a decision of Taylor J, in which an amount was allowed in general damages for the attendance of the plaintiff's parents at the hospital where she had been taken after injury. In Griffiths v Kerkemeyer Stephen J at p. 173 described that decision as breaking new ground which bore fruit in a number of subsequent decisions. In Wilson v McLeay the court heard evidence from the treating doctor that it was reasonably necessary for the plaintiff to have someone with her immediately following the accident but that there was no need for visits by the young woman's parents some 6 weeks after the accident unless there were considerations of further operations or she was emotionally upset or some other complication arose. His Honour said at p.527:

"She was in hospital many hundreds of miles from home, her injuries were serious and such as to call for such comfort and consolation as her parents' reasonable attention could provide. ... according to the medical evidence, it was of some importance in the alleviation of her condition that she should have the comfort and assistance of her parents."

In Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 the fares incurred by the plaintiff's mother coming from Italy to help care for her were disallowed as an item of special damages but the principle in Wilson v McLeay was accepted that the cost of fares of relatives and others visiting an injured person may be allowed in the case of a young person injured and far from home.

117 Where medical evidence has indicated that the presence of a family member at the hospital has a definite therapeutic value some sum will be allowed to reflect this, Hunter v Scott [1963] Qd R 77; Cook v Wright [1967] NZLR 1034; Curator of Estates of Deceased Persons v Fernandez (1977) 16 ALR 445; Richardson v Schultz (1980) 25 SASR 1.

118 The assistance rendered by Mrs Hawley to her son whilst he was in hospital involved feeding him and taking him special food because he did not particularly like the hospital food and, I would infer, sympathetic companionship. His brother Darren attended regularly, it would appear, for companionship. The only direct medical evidence about the plaintiff's need for visits by his family was from Dr Davies who when asked if the plaintiff's brother were supplying him with marijuana or alcohol at hospital visits would that be conducive to his treatment or rehabilitation, answered "No".

119 It has become the practice in some personal injury cases to claim the full period of attendance by family members at the hospital. Consistently with the general principal enunciated in Griffiths v Kerkemeyer that attendance must be a need generated by the damage suffered by the plaintiff as a consequence of the tort and not an ordinary affectionate response by a family to the injury of one of its members. While there has been no medical evidence which might have been expected to be adduced from Dr Davies, the plaintiff's evidence of his distress and pain in the early period of hospitalisation, together with his youth persuades me that some allowance should be made for his mother's attendance. The practical things which Mrs Hawley did for her son, such as feeding him, the evidence shows, would have been done by the hospital staff but the staff were busy and, Mrs Hawley said, grateful and, no doubt it was done with care and love and contributed to his recovery. The plaintiff had visits to his father's home from time to time at weekends from the hospital requiring constant care. Those weekends were not precisely identified but occurred towards the end of his hospitalisation and would have been productive of much more intense care than was the case after he had been settled at his father's home. I would allow care at the claimed rate of $10 per hour for 8 hours per day for 2 months from the commencement of his hospitalisation ,which amounts to $4,800. He would, I assume, have needed attendance after his operation in June 1991 for about a month. The rate claimed is $9 per hour which amounts to $2,160. In the absence of any evidence concerning the plaintiff's needs during the other periods of hospitalisation I am unable to make any allowance.

120 The plaintiff's attendances at his father's home I would allow at $9 per hour for 4 weekends at 20 hours per weekend which amounts to $720. The total amount before discharge is $7,080.

121 Payment has been made to the plaintiff under the Attendant Care Program by the Department of Families, Youth and Community Care. He has paid that amount to his carers. As at the 14 August 1998 that amounted to $138,167 with monthly payments of $2,804. Under the provisions of the scheme, should he be successful in his claim for damages the Department must be reimbursed the cost of attendant care received. That amount has been allowed in the plaintiff's special damages. The plaintiff claims 3 hours a day, 7 days a week for personal care arising from his injury based needs in addition to the 5 hours a day which he has from the paid carers. Mrs Hawley said that she assists with his catheter which may be at hourly or at 1½ hour intervals. The plaintiff has explained that he is unable to do it for himself. Mrs Hawley may need to attend him at night when he often calls out. He may have a spasm in his legs. She prepares his meals. He has bowel accidents. On occasions this has occurred 3 times a week and can happen in the day or in the night. Mrs Hawley is unable to utilise the hoist because it is too difficult to handle and she needs the assistance of a stronger person to clean him. Mrs Hawley does not care to leave him longer than an hour although Dr Davies said a longer period would be safe enough provided he had something like a vital call system. When he is left he has a telephone placed on his chest so that he could call someone for help.

122 Mr Williams submitted that since Mrs Hawley and her husband before her were in receipt of non refundable carer's pensions to look after the plaintiff then there was no obligation on the defendants to pay further for a need which had already been met. He referred to Harth v Schick [1992] 2 Qd R 101. In that case a plaintiff sustained severe injuries in a motor vehicle accident. Her mother ceased full time employment in order to care for her and whilst doing so received a supporting parent's benefit pursuant to the Social Security Act (Cth) 1947. Demack J, relying upon the decision of Veselinovic v Thorley [1988] 1 Qd R 191, used the mother's loss of wages as a measure of the cost of meeting the plaintiff's needs. On that basis he concluded that the supporting parent's benefit should be taken into account as part of the "realities of family income" at p. 103. That decision was handed down just prior to the High Court decision in Van Gervan v Fenton which criticised the approach to calculating gratuitous care taken in Veselinovic. Whatever view one might take of the practical effect of such an outcome, where a non refundable source of income is provided to a carer specifically to cater for a plaintiff's needs generated by the tortious acts of a defendant, it is to be disregarded in the assessment of the quantum of the plaintiff's damages for past gratuitous care.

At a glance

Court

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Before

Source

Judgment (288 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (19)