Shellharbour City Council v Rhiannon Rigby & Anor

The accident 13 The plaintiff suffered brain damage in the accident and has no recollection of what happened. She was accompanied at the time by her younger brother Nicholas, who was then nine years old, and a friend who was also aged 13. The children had ridden their bikes to the Sporting Complex and went to the BMX track. The plaintiff was riding a girls' mountain bike with wide tyres. It was not specifically designed for a BMX track. The children went to the top of the starting ramp where they talked for a while and watched the aeroplanes on the nearby airstrip. The plaintiff then accepted a dare by her friend to ride down the starting ramp. 14 The friend gave evidence that the plaintiff had walked the bike down the starting ramp until about halfway down before she put her feet on the pedals and started pedalling. Her version of the accident was that the accident occurred on the second hump when the bike skidded on the gravel. The plaintiff's brother gave a different version. He said that the plaintiff had commenced riding her bike from the top of the starting ramp and became airborne as she went over the first hump. The bike then crashed to the ground. 15 The trial judge accepted the brother's recollection as generally more reliable, but found that it probably did not matter whether the plaintiff commenced pedalling from the top of the starting ramp or from about halfway down. His Honour found that at some stage, the plaintiff started pedalling and was trying to build up speed as she approached the first hump and that as she took off over it, her bike became airborne, she lost her balance and fell to the ground, landing on the left side of her face (judgment [19]). His Honour further found that the plaintiff's speed at the first hump was too great for a person of limited experience, so that when she became airborne, she lost her balance and fell. His Honour found that the plaintiff was wearing a properly fitted safety helmet at the time (judgment [20]). 16 It seems that the plaintiff and her brother Nicholas had been told not to ride on the BMX track. It is likely that this instruction had been given to them by their parents after a teacher at the children's school had died when he suffered fatal head injuries whilst riding on the track in 1993. The plaintiff gave evidence that she knew that her parents did not like her and her brother riding on the track but could not remember when she had been told that. She recollected that her parents' instruction was related to the death of the teacher at the track (judgment [21]).

The plaintiff's allegations of negligence 17 The plaintiff alleged that the Council and the Club had a duty to take reasonable care for her safety and that each had breached that duty. The allegations of breach were, effectively, the same against the Council and the Club, namely: a failure of adequate design and construction; a failure to adequately fence the track; a failure to erect appropriate warning signs of the danger of use of the track; a failure to instruct users of precautions to be taken in using the track; and a failure to adequately restrict access to the track. 18 There were specific allegations against the Council relating to a failure to specify adequate conditions in its consent in relation to the construction of the BMX track. There were also specific allegations of a failure to carry out modifications or rectification work after the death of the teacher and a specific allegation against the Council that it was negligent in failing to fence off the starting ramp with lockable gates across its entry. 19 There was a similar, but slightly differently worded, allegation against the Club, namely, that it was negligent in failing to erect removable or lockable gates across the track at intervals to restrict its use by unauthorised cyclists. There was a specific allegation against the Club that it failed to provide a gate to the concrete starting pad.

The trial judge's findings 20 The trial judge found that there were a number of risks of injury inherent in the use of any BMX track where the object was to ride over humps at speed so as to become airborne. His Honour found that the risk of injury, including serious and even fatal injury, was foreseeable. Accordingly, his Honour found that the Council and the Club each had a duty to take reasonable care to prevent injury to those persons who might use the track. 21 His Honour rejected a number of aspects of the plaintiff's claim in negligence. Specifically, he rejected the allegation that the general public should have been excluded from the use of the track. His Honour observed that that would defeat the very purpose of providing a public recreational facility. His Honour also rejected that the whole track should have been fenced off, as that would have had the same effect of excluding the public. His Honour found that there was no "industry practice" to fence off BMX tracks. 22 His Honour further rejected the allegation that there was any inadequacy of design, construction or maintenance of the park. His Honour observed that the BMX track was not as safe for bicycle riding as a flat concrete path, but that it was not meant to be. His Honour found, in any event, that there was no evidence that any deficiency in design led to the plaintiff's fall. 23 His Honour next rejected the allegation of negligence based on the failure to erect warning signs. There was no evidence as to what an appropriate sign should state and his Honour found that in any event, he was not satisfied that a warning sign would have been effective to dissuade two teenage girls from riding on the track, even if they had seen the signs and read them. Finally, his Honour rejected the allegation that the humps should have been fenced off. 24 His Honour held, however, that the position with the starting ramp was different. His Honour found (at [34]) that the starting ramp was there for the specific purpose of securing even starts and a build-up of initial speed by experienced riders on race days. He found that its use was not necessary for casual, inexperienced riders, who simply wanted to ride over the humps. He considered that it was foreseeable that an inexperienced rider would use the starting ramp as a means of acceleration to the first hump without realising the danger. He also found that the ramp and its proximity to the first hump appeared to be the most dangerous feature of the track. His Honour found, therefore, that the Council and the Club had a duty to take reasonable steps to avoid injury to inexperienced riders, by fencing off the starting pad and ramp to prevent it being so used (judgment [34]). 25 His Honour further found that the starting ramp and its proximity to the first hump involved a foreseeably increased risk of injury in the case of children: see particularly Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [123] per Kirby J. His Honour further found that the starting ramp was an allurement to children, rendering it more likely that they would attempt to use it: Thompson v Bankstown Corporation (1953) 87 CLR 619; Southern Portland Cement Limited v Cooper [1974] AC 623, affirming Cooper v Southern Portland Cement Ltd (1972) 128 CLR 427. 26 The trial judge found that in circumstances where the ramp and its proximity to the first hump appeared to be the most dangerous feature of the track it was incumbent on the Council to take reasonable care to avoid injury to casual inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders (judgment [34]). The Council submits that this finding was no more than a finding of a generalised duty of care. A finding of a general duty of care was not sufficient, on the Council's submission, to make it liable to the plaintiff. 27 His Honour found that fencing off the starting pad would not be disproportionately expensive and would have prevented the plaintiff approaching the first hump at such a high speed and would probably have prevented her fall or at least rendered it much less catastrophic. His Honour found, therefore, that by failing to fence off the starting pad and ramp, the Council and the Club were each in breach of their duty of care to the plaintiff.

Ground 1: Did the Council owe a relevant duty of care? 28 The Council accepted that as an occupier of the Sporting Complex it had what it described as a general duty of care. However, it submitted that it did not owe a relevant duty of care to the plaintiff, by which, as I understand it, the Council contended that there was nothing by way of the content of the duty of care it owed that would make it liable to the plaintiff. It was integral to the Council's submission that it did not owe a duty of care, other than in a general sense as occupier, in circumstances where the Club had, on the Council's submission, the day-to-day control of the track, and in circumstances where his Honour did not make any specific finding as to the Council's role in the design and construction of the ramp. 29 The Council also submitted that his Honour deduced that because the Council was in general occupation of the Sporting Complex and because there was a risk of injury that was foreseeable, it thereby owed a duty "to take reasonable care to prevent injury to those persons using the track" (judgment [28]). It was submitted that his Honour failed to have regard to the specific circumstances of the case so as to determine the duty of care above that generalised level. 30 In particular, the Council disputed that it owed a duty of care to inexperienced riders, as found by the trial judge. It submitted that the BMX track, including the facility provided by the starting ramp was there for the use of all persons who wished to use it so as to allow people to exercise their own level of skill and reach their own level of competence. It was an inherent part of the risk of BMX bike riding that injuries would occur, so that it followed, on the Council's submission, that it did not have a duty to ensure that inexperienced riders did not suffer injury. 31 The first question, therefore, on the Council's submission, was what were the reasonable risks to which the Council had a duty to respond, so as to be able to determine the content of its duty of care. The Council submitted that this determination could not be made by distinguishing between the risks involved in the use of the starting ramp and the risks involved in riding over the humps, being a distinction made by the trial judge. It was submitted that such a distinction could not be supported in law or in fact. 32 I agree that it does not assist to merely identify a general duty of care when seeking to ascertain whether an occupier is liable in negligence. The essential question is what is the content of the duty of care in a particular case and in this case, what was the content of the duty of care owed by the Council to the plaintiff. As Hayne J in Modbury Triangle Shopping Centre Pty Limited v Anzil & Anor (2000) 205 CLR 254; [2000] HCA 61 noted, although it is well established that an occupier owes a duty of care to those who enter upon its land, that is an insufficient analysis of the duty question. His Honour said at [102]: "The relevant question … is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes." 33 Modbury involved the question whether the owner and occupier of a shopping complex had a duty to control the criminal conduct of third parties. The plaintiff had been attacked in the car park owned and occupied by the appellant. The Court rejected the plaintiff's argument that the appellant owed a relevant duty of care to prevent physical injury resulting from the criminal behaviour of third parties. In doing so, the Court focussed on the question of how a relevant duty of care might be identified. Gleeson CJ said: "[17] That an occupier of land owes a duty to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. The nature of the harm suffered was physical injury inflicted by a third-party over whose actions the appellant had no control …

[18] The basis of the duty which, as occupier, the appellant owed in relation to the physical state or condition of the premises was control over, and knowledge of, the state of the premises." (Emphases added) 34 Gleeson CJ had earlier pointed out that many negligence cases arose out of relationships where the nature of the duty of care was well understood. He cited motor vehicle accident and employer/employee cases as examples. However, there were other cases where there was a real issue as to the existence and measure of legal responsibility. His Honour said that in such cases, "[14] ... it is useful to begin by identifying the nature of the harm suffered by a plaintiff, for which a defendant is said to be liable." 35 Hayne J considered that often, the extent of the relevant duty could not be determined in isolation from the facts. He said: "[103] Because the extent of a duty falls for decision in relation to 'concrete facts arising from real life activities': [ Perre v Apand Pty Ltd (1999) 198 CLR 180 at 211 [80]]; it will not always be useful to begin by examining the extent of a defendant's duty of care separately from the facts which give rise to a claim. That may be possible, and useful, in a simple case (like motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently precise formulation of the duty which obscures the issues that require consideration …" 36 Hayne J referred to Sutherland Shire Council v Heyman (1985) 157 CLR 424, where Brennan J had pointed out, at 487, that: "… a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member." 37 Hayne J considered, however, at [104] that the duty of care will not always be sufficiently stated by reference to those two postulates viz: the kind of damage suffered and the class of which the plaintiff is a member. His Honour then dealt with the circumstance where the extent of the relevant duty was uncertain. He said: "[105] … where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by the want of care, resulted from the breach of duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegation of breach and damage must depend." 38 In dealing with the duty of an occupier Hayne J said: "[112] The occupier of land has power to control who enters and remains on the land and has power to control the state or condition of the land. It is these powers of control which establish the relationship between the occupier and entrant 'which of itself suffices to give rise to a duty … to take reasonable care to avoid a foreseeable risk of injury' [ Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479 at 488, per Mason, Wilson, Deane and Dawson JJ] to the entrant …" 39 In Modbury, the 'control' which the occupier had over the conduct of others was the important matter for consideration. The question of control, particularly in the case of statutory authorities, has emerged as an important consideration in recent authorities. In Romeo v Conservation Commission of the Northern Territory at 487-488 Hayne J said: "[152] It has now long been held by this Court that the position of [a statutory] authority … which has power to manage, and does manage, land which the public use as of right is broadly analogous to that of an occupier of private land. It is the management of the land by the authority which provides the necessary relationship of proximity between authority and members of the public." (Reference omitted) 40 However, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29, Hayne J observed at [303] that a statutory authority does not have the same level of control over access to land or premises under its authority as does a private occupier. In Brodie, the Court was concerned to define the duty of care owed by a statutory road authority. On the question of control, Gaudron, McHugh and Gummow JJ said at 559: "[102] … the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person … as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance .

[103] It is often the case that statutory bodies which are alleged to have been negligent because they failed to exercise statutory powers have no control over the source of the risk of harm to those who suffer injury. Authorities having the control of highways are in a different position. They have the physical control over the object or structure which is the source of the risk of harm." (Footnotes omitted; emphasis added) 41 Hayne J said: "[116] It is sometimes said that a statutory authority having the care, control and management of a reserve is in a position analogous to that of an owner of private land. Like all analogies, however, it is dangerous to assume that the analogy is perfect. For example, a statutory authority having the care, control and management of land may not be able to control entry on the land in the same way as a private owner. It may or may not be able to close the area or part of it. And its task of care, control and management of the various areas committed to its care may be much larger and more complicated than any obligations a private owner of land may encounter.

[117] It is long established, however, that a statutory authority, having the care control and management of land to which the public has access, owes a duty of care to those who enter . To this extent, the analogy with private landowners is apt. But what reference to the breadth of a council's obligations reveals is that the analogy is not perfect. In particular, the content of the duty is not necessarily identical. [Emphasis added]

[118] That may suggest that an attempt should be made to define the content of the Council's duty of care more precisely. Subject to one qualification, that would not be a useful exercise. The qualification is that it is necessary to recognise that the duty of care, owed by a statutory authority to those who enter land of which the authority has the care, control and management, is not a duty to ensure that no harm befalls the entrant. It is a duty to take reasonable care. Beyond that, however, it is not possible to amplify the content of the duty without reference to particular facts and circumstances. In each case, the content of the duty will turn critically upon the particular facts and circumstances." (Original emphasis) 42 The Council, relying upon those authorities, injected considerable energy into its submission that it did not have the requisite occupation or any role in the management of the track for it to have other than a general duty of care. In particular, the Court was referred to the extensive documentation relating to the approval of the building of the track; the annual licence renewals; and correspondence relating to fencing. 43 One piece of correspondence relating to fencing was raised after the death of the school teacher. The solicitor for the school teacher's wife wrote to the Council on 14 October 1996 seeking to have the track fenced off. The Council replied: "[W]hile fencing off the facility has been considered it is not considered as a solution which will prevent accidents from occurring on the BMX track." 44 The documentation to which reference was made also covered the Club minutes and other correspondence which, it was contended, established that the Club was responsible for the maintenance of the track. It must be said that was well established by the evidence and, in any event, was not in dispute. It was in dispute, however, that the Club had the day-to-day management of the track, as found by his Honour, a matter to which I will refer later. It did, however, have some ongoing management of the track. 45 The Council submitted that the Club was the relevant occupier of the track for the purposes of determining the question of whether a duty of care was owned and, if so, who owed the duty of care. The Council further submitted that the Club had the overall management of the track and knew the particular dangers that it posed. It followed that it was the Club that owed any duty of care to users of the track, not it. This argument also went to contribution. 46 However, the fact that the Club had the ongoing management of the track and was responsible for its maintenance does not, in the circumstances of this case, abrogate the Council's duty of care, nor otherwise confine its duty to a generalised one of no relevant specific content. The Council was the development authority for the site, and, as such, had the power to specify conditions relating to the design and construction of the track. The Council inspected the track regularly and from time to time made decisions about its design and layout, including, specifically, a decision not to fence any part of it. It licensed the use of the track annually. 47 The duty of care in this case does not concern the question of controlling the criminal or other conduct of third parties, as was the case in Modbury. Nor in my opinion does it fall within the more difficult category of case referred to by Hayne J in Modbury, where the duty is not stated sufficiently by reference to the kind of damage suffered and the class of which the plaintiff is a member. I will return to this shortly. Before doing so, it is necessary to address a further argument advanced by the Council as to why it did not owe a duty of care to the plaintiff beyond a general duty, namely, because of the obviousness of the risk.

Obviousness of the risk 48 The council argued that it did not owe a duty of care in respect of obvious dangers and that the risk of falling on the track was obvious. It submitted that Brodie v Singleton Shire Council established that 'obviousness' was relevant to the question whether a duty of care was owed, particularly in the case of recreational activities where all participants will be exposed to risks. It was further submitted that to simply define 'duty' in terms of experience/inexperience was not meaningful in the context of a sport. 49 In Brodie, Gaudron, McHugh and Gummow JJ observed at [163] that: "The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous , the plaintiff was a pedestrian … As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards …" (Emphasis added) 50 Following the High Court's decisions in Brodie and Ghantous, there was what might be described as an explosion of decisions relating to "obvious hazards". As has been the subject of comment in other judgments, significant confusion arose in relation to the role that "obviousness" played, and in particular, whether it was relevant to the question of duty or breach, or both. The question was addressed again in the decisions of the High Court in Vairy v Wyong Shire Council (2005) 80 ALJR 1; [2005] HCA 62 and Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43; [2005] HCA 63. It is necessary to deal with these decisions in some detail because of the Council's insistence that, in this case, the obviousness of the risk was relevant both to the question of duty and breach and that it was decisive of both issues. In considering the way that 'obviousness' was dealt with by the High Court, it is convenient to refer to the passages in the judgment that deal with breach, as well as duty. 51 Both Vairy and Mulligan involved circumstances where a plaintiff dived into water and suffered catastrophic injury. In the case of Vairy, the diving was from a rock platform. In Mulligan, the plaintiff attempted a shallow dive from a standing position in a creek. In each case it was held that the respective Council did not breach its duty of care. 52 The principal judgment of the Court was in Vairy at [6]-[8]. Gleeson CJ and Kirby J dealt with obviousness at the level of breach. McHugh J also dealt with the question of obviousness at the breach stage. His Honour said at [19]: "The Court of Appeal erred in finding that the risk of injury was so obvious that the Council was not negligent in failing to erect a warning sign. Seldom will the obviousness of a risk created or permitted by a defendant who owes a duty of care require no action by that party. Ordinarily, when the obviousness of a risk requires no action, the magnitude and likelihood of the risk will be so insignificant and so expensive or inconvenient to avoid that reasonable care requires neither the risk's elimination nor a warning concerning its propensity." (Emphasis added) 53 Gleeson CJ, Kirby and McHugh JJ dissented in the result. The point of difference between their Honours' judgments and those of the majority was very much a factor of the individual emphasis placed upon the question of obviousness. 54 Gummow J said at [55]: "… reference to a risk being 'obvious' cannot be used as a concept necessarily determinative of questions of breach of duty or, I would add, of questions of the existence and content of duty itself." (Emphasis added) 55 Hayne J stated at [162] that the reference to a risk being "obvious" was apt to mislead and could not be used "as a concept determinative of questions of breach of duty", nor should the notion of 'obviousness' be elevated into some doctrine or general rule of law. As his Honour pointed out, to make 'obviousness of risk' determinative of breach:

"… may divert attention from what would have been the reasonable response to foreseeable risk to consideration of how someone other than the plaintiff could have avoided injury. Enquiries of this latter kind will be relevant when considering questions of contributory negligence. They are not useful, however, when considering breach of duty." 56 Callinan and Heydon JJ relied upon their comments as to obviousness in their judgment in Mulligan. In Mulligan, their Honours, at [75], considered that in a particular case obviousness might be of such significance as to carry with it a high degree of importance, even to be conclusive. Their Honours referred to the statement of Gleeson CJ in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460; [2002] HCA 9, where Gleeson CJ, with whom Hayne J agreed, thought obviousness was decisive in relation to the recreational activity in which the plaintiff was there engaged. Their Honours also referred to the judgment of Callinan J in Woods v Multi-Sport at [62] as being relevant to their determination in Mulligan. In Woods v Multi-Sport, Callinan J said: "[159] The sport of indoor cricket … [p]layed … with a semi-flexible ball and a bat with which to hit it as hard as possible … gives rise to an obvious risk that a ball might strike an eye. Any assertion to the contrary is simply untenable. Any person could not be other than aware of that particular risk after a few moments observation of the game. As I said in Agar v Hyde (2000) 201 CLR 552 at 600-601 [125]-[127], sports injuries and duties of care owed by those involved in sport simply cannot be approached in the same way as non-recreational or involuntary activities ." (Emphasis added) 57 As I have indicated above, the Council relied upon this line of authority in support of a submission that obviousness of risk was relevant at both the level of duty and breach. It was submitted that, even though there was now a body of authority to the effect that 'obviousness' was relevant to breach, it remained relevant to the determination of duty in the case of recreational activities. The particular submission made by the Council was in terms that there were recognised obvious risks inherent in the activity of riding on a BMX track where the object was to ride over humps at speed so as to become airborne (see judgment at [27]), including falling over for whatever reason. It followed, on the Council's submission, that it was a risk in respect of which nothing reasonably could be or ought to have been done. 58 In my opinion, the weight of authority in the High Court is that the question of obviousness relates to breach and not to duty. But, even assuming in this case that obviousness was relevant to duty, then, contrary to the Council's assertion that the obviousness of the risks associated with BMX bike riding negated any relevant duty, the fact that there were risks of injury called for a response. The question of what response was called for strictly goes to the question of breach. However, breach can only be determined having regard to the content of the duty, to which I will return shortly. Before doing so, I should refer to one other matter. 59 The trial judge found that the class of persons to whom the Council owed a duty was the class of inexperienced riders. That may be too narrow a classification, although as will be apparent, the fact that the class should perhaps be identified more broadly would not affect the outcome in this case. The BMX track was an open track within a major recreational area. The recreational area itself was a large complex, designed for use by a variety of users, including for organised and non-organised activities and use for purely recreational and leisure activities. The persons who might so use the complex would cover the whole range of citizens: young and old, families and children and teenagers, alone, in groups of varying sizes, supervised and unsupervised. 60 The track itself was unfenced and available for use by anyone at any time, including use by all persons who had access to the complex. It follows, in my opinion, that the class of persons to whom the Council owed a duty to take reasonable care were all persons who were likely to use the track other than under the supervision of the Club. That class included young children and teenagers who were inexperienced BMX riders.

Conclusion on duty of care of the Council 61 It is necessary to return to the question whether the Council owed a duty of care to the plaintiff and more particularly, what was the 'content' of that duty, to use the language of Gummow J in Vairy, or what was the 'extent' of the duty, as Hayne J phrased the issue in Modbury. 62 In this case, the nature of harm suffered was injury from a fall after riding down a starting ramp that was designed so as to build up speed preliminary to becoming airborne over the humps. The trial judge found the starting ramp itself was there for a specific purpose, namely to secure even starts and a build up of initial speed by experienced riders on race days. That finding was open to his Honour, as was his finding that the ramp was not necessary for use by inexperienced riders, being the 'class' to which the plaintiff belonged, as was his further finding that the ramp and its proximity to the first hump was the most dangerous feature of the track. In this regard, it should be observed that his Honour had a view of the track and was able to make an assessment of the features of the track. 63 The Council contended, however, that there were inherent risks in this activity and that risk came home, just as there were in the 'sports' cases, such as a scrum collapsing, or being hit in the eye by a cricket ball at an indoor cricket game, such a risk was not something in respect of which anything reasonably needed to be done. It was in this respect that the Council relied in particular upon the comments of the High Court in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (referred to in Woods v Multi-Sport to which I have already referred). Those cases, however, were very different from this. They involved organised recreational sporting activities for adults. In this case, three young children/teenagers were out riding their bikes. They did not immediately go to the starting ramp, but went there after riding around the track backwards and then finally going up onto the platform of the ramp to watch aeroplanes take off. This is a different context in which to determine whether there was a duty of care than was being considered either in Agar v Hyde or Woods v Multi-Sport. In the latter case, Gleeson CJ said at [37]: "As Kitto J pointed out in Rootes v Shelton (1967) 116 CLR 383 at 387, people have taken pleasure in engaging in risky games since long before the law of negligence was formulated, and there is nothing new or mysterious about the application of the law to such conduct. But the sporting context may be of special significance in relation to a factual judgment that must be made. Depending upon the manner in which a plaintiff seeks to make out a case of negligence, the risky nature of a sporting activity in which an adult participant has chosen to engage may be of factual importance in a decision as to whether such a case has been established." 64 Gleeson CJ contrasted the position where adults were engaging in risky activities, to the case of a child: see at [40]. 65 There have been other cases in this Court where it has been argued that an occupier does not owe a duty of care in respect of 'obvious risks': see Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Booksan Pty Limited v Webbe [2006] NSWCA 3. That argument was rejected in both cases. In Booksan, Ipp JA observed that the High Court's decision in Neindorf v Junkovic [2005] HCA 75 reinforced the view that obviousness of the risk did not bear upon the question of the duty of care of an occupier. Those cases concerned private land. I do not consider that the position is different in respect of a public recreational space. I am of the opinion that the obviousness of the risk did not extinguish the Council's duty of care as occupier or otherwise confine it to a generalised duty of care with no specific content. 66 The Council had almost complete control over the BMX track. It was the consent authority. It provided assistance with its construction. It inspected the track. It made decisions as to its use. It made a specific decision to allow members of the public access to the whole track. As his Honour found, the starting ramp was dangerous to inexperienced riders and it was foreseeable that inexperienced riders would use the ramp and that there was a risk of injury should they do so. In the circumstances, the Council owed a duty to take reasonable care to avoid that foreseeable risk. 67 In the present case the damage that was suffered by the plaintiff was an injury when she became airborne whilst going over the first hump on the BMX track and then fell. The trial judge found that prior to becoming airborne she had gathered speed as she came down the starting ramp and continued to pedal so that she arrived at the first hump at a speed that was too great for a person of her limited experience. In my opinion, his Honour's finding at [34] as to the extent of the duty was correct: namely, that the Council had a duty to take reasonable steps to avoid injury to such inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders. It follows I would reject Ground 1 of this Appeal.

Ground 2: Did the Council breach its duty of care 68 Much of the Council's argument on breach was directed to the risk of falling being an inherent part of the sport of BMX riding and, given that the sports complex in general and the BMX track in particular was open to the public without discrimination according to experience, it was reasonable for the Council to expect that the individual entrant would exercise care in selecting what risks would be taken. The Council relied in particular on the comments of Gleeson CJ in Agar v Hyde at [13] ff and Woods v Multi-Sport, where his Honour referred to the hazardous nature of many recreational activities. 69 In Woods v Multi-Sport, the High Court was concerned with a person who was hit in the eye whilst playing a game of indoor cricket. Gleeson CJ, in referring to the judgment of Kitto J in Rootes v Shelton (1967) 116 CLR 383 at 387, observed that the application of the law to the conduct of persons in undertaking risky activities is not new. He pointed out, however, that the context may be of special significance in relation to the factual judgment that must be made. The Chief Justice identified the question to be determined in classic terms: namely, what a reasonable person in the position of the defendant would do in response to the risk (see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47). 70 Gleeson CJ explained this further: "[40] In some cases, of which the present is an example, a court is not confronted with a risk that is quite unlikely to occur; it is dealing with an activity which carries with it the possibility of injury, including serious injury, in a number of different forms. The appellant was not a child , and he was not being compelled to play the game. He was an adult who chose, for his personal enjoyment, to play. That the activity is risky is plain to anyone who understands what it involves, including the respondent. The respondent carried on the business of providing facilities for persons such as the appellant to play the game. The question for the tribunal of fact was what reasonableness required by way of response from the respondent, having regard to the respects in which the respondent was alleged to have been negligent.

[41] Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant … because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case." (Emphasis added) 71 His Honour found that the ramp and its proximity to the first hump not only constituted a foreseeable risk of injury in the case of inexperienced adult riders, but that the risk was increased in the case of children, such as the plaintiff. His Honour referred, correctly, to the statement of Kirby J in Romeo v Conservation Commission of the Northern Territory at [123] per Kirby J that: "The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of the care required will take into account the different ages, capacities, sobriety and advertence of the entrants." 72 His Honour found that each of the Council and the Club was in breach of its duty of care to the plaintiff in failing "to take reasonable steps to avoid injury to such inexperienced riders by fencing off the starting pad and ramp to prevent it being used by such riders". 73 The Council submitted that his Honour, in determining breach, had impermissibly engaged in hindsight reasoning. The notion of hindsight reasoning was explained in Romeo v Conservation Commission of the Northern Territory at [123], where Kirby J stated: "The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct." 74 It was submitted that to identify the starting ramp as a place of particular danger was to engage in hindsight reasoning. I do not agree. The law of negligence requires reasonable care to be taken to avoid a foreseeable risk of injury. That requires an identification of the danger or risk that calls for a response from a party that owes a duty of care. 75 It was next submitted that given the particular characteristics of the sport of BMX riding, no response was called for. It was said that a rider becoming airborne was an integral part of the sport of BMX bike riding, that speed, and variations in speed, were also integral to the sport, speed being one of the ingredients enabling a rider to become airborne. The starting ramp was specifically intended to enable a rider to gather speed at the commencement of the ride for the very purpose of allowing the rider to become airborne. The intent of this submission, as I understand it, was that if some step was taken to make the starting ramp inaccessible, an essential part of the activity would be taken away. However, the plaintiff was not engaged in the sport of BMX bike riding. Nor was she engaged in the recreational activity of BMX bike riding. She was riding her mountain bike through a sporting complex that involved pathways, bushland and the BMX track. The inherent risks of BMX bike riding were not ones that she was undertaking, except to the extent that she responded to a dare and thus became subject to such risks in circumstances where she did not have the experience to deal with them. In my opinion, this submission should be rejected. 76 The Council also submitted that there were other features of the track that enabled a rider to pick up speed. Senior counsel for the Council referred to photographic evidence that demonstrated that there were portions of the ride that were cambered in such a way so as to enable a rider to pick up speed. It was submitted that the gradient of these cambers was greater than the gradient of the starting ramp and that it followed that there were other parts of the track that were as dangerous as the starting ramp. It followed, on this submission, that there was no point in isolating the starting ramp and taking steps to prevent its use. 77 The trial judge did not deal with any such argument (and no complaint was made that he failed to do so). Nor would I be prepared to make such a finding on the basis of photographic evidence. The photographic evidence was useful to demonstrate the topography of the track in a general sense. However, as is well-known, photographs are inefficient tools to demonstrate angles, distances, heights and gradients. There was no specific evidence to make the Council's submission good on this point. 78 The Council further submitted that the trial judge's finding (judgment [34]) was erroneous in a number of respects. First, it submitted that it was not open to his Honour to make any finding that it was the ramp and its proximity to the first hump that appeared to be the most dangerous feature of the track without there being expert evidence to that effect. I do not agree with this submission. His Honour had a view of the BMX track and the starting ramp. In these circumstances, it was within the capacity of the trial judge to make findings of fact in this case on the physical features of the track and of the dangers of the starting ramp, without the need for expert evidence. A trial judge is not deprived of the ordinary person's common sense when having to decide such matters. Indeed, that is an inherent part of a fact-finding process of a trial judge. If the Council's submission was to be accepted it would mean that a trial judge would need expert evidence that a child riding a bicycle down a hill which ended in a sharp curve or a hump was in danger of being unable to negotiate the curve or hump. With respect, the process of fact finding is not so esoteric. In this case, the dangerous aspect of the starting ramp was, even on the Council's case, obvious. 79 It was also submitted that his Honour's reasoning was not supported by the existence of any industry practice to fence off the starting ramp, and was also inconsistent with the known practice in relation to skateboard ramps, which are not fenced as to do so would have the effect of excluding the general public. In my opinion, for reasons I explain more fully below, neither of these matters undermines his Honour's finding. 80 It was further submitted that his Honour erred in finding that the starting ramp was there for a specific purpose, namely to secure even starts and a build-up of initial speed by experienced riders on race days. On the Council's submission, his Honour's finding was that this was its only purpose. The Council contended that the starting ramp was there for all users of the BMX track, both experienced and inexperienced, and that it was a false dichotomy to distinguish between the two. It was submitted that this was apparent from the fact that the Club itself used the track for a range of activities, including for persons who were not experienced. 81 This particular submission can be dealt with shortly. The thrust of his Honour's reasoning was that the starting ramp had a specific purpose. He did not find that the use of the ramp to build up speed by experienced riders on race days was the only purpose for which the ramp was used. Rather, his Honour recognised that it was foreseeable that inexperienced riders would use the ramp and would do so unsupervised. Being foreseeable, it was a risk in respect of which the Council and the Club had a duty to take reasonable steps to avoid injury to inexperienced riders. There was no error in his Honour making this finding and reaching the conclusion he did. 82 The Council also challenged his Honour's factual finding that the plaintiff was an inexperienced bike rider. He referred to evidence that she had been riding bikes since she was young, and that she was a good rider. Again, this challenge can be disposed of shortly. The plaintiff was not an experienced rider on a BMX track. It was unclear whether she had been on the track before, but if she had, it was at the most on one occasion. She did not have and never had a BMX bike, and there was no evidence that she had ever ridden one. On the day of the accident she was riding her mountain bike. 83 The Council further submitted that the plaintiff's conduct in riding down the ramp, given her inexperience, was unreasonable conduct which, although foreseeable, did not require any response by the Council in order to discharge its duty of care. In short, it was submitted that the Council was entitled to expect that the plaintiff would exercise reasonable care for her own safety: see Brodie v Singleton Shire Council at 581 [163]; Romeo v Conservation Commission of the Northern Territory at 444 [19] and 478 [123]. It was submitted that the Council was entitled to expect an entrant of the plaintiff's age to exercise a degree of care comparable to an adult with a similar lack of experience. I would also reject this submission. It is contrary to any realistic understanding of the capabilities, sense of responsibility and maturity, or otherwise, of children. 84 His Honour was required to determine what the reasonable response was to the risk of injury that he had identified. His Honour was satisfied that even though the track as a whole should not be fenced off, the reasonable response to the identified risk of harm required that the starting ramp be fenced off so as to ensure that it was not used by inexperienced riders who, by the fact of their inexperience, were unlikely to be able to manage the speed generated by using the starting ramp prior to negotiating the first hump. His Honour posed the central question for determination and answered that question. In my opinion, no error has been demonstrated on this issue.

Causation 85 The trial judge found that fencing off the starting pad and ramp: "… would have prevented the plaintiff approaching the first jump at such a high speed and thus would probably have prevented her fall, or at least rendered it much less catastrophic" (Judgment at [37]). 86 The plaintiff's essential challenge to the finding that a fence positioned at the top of the ramp would have prevented the accident was without evidentiary foundation. It was submitted, for example, that the plaintiff did not prove that if a fence was positioned at the top of the ramp, she would not have attempted to ride her bicycle down the ramp, either by lifting the bicycle over the fence or walking or riding her bike up the ramp: see Nambucca Shire Council v Connor [2004] NSWCA 13 at [20]. That case was what might be described as a "warning" case. The plaintiff was injured when she tripped, allegedly on a protruding nail, as she was walking along one of the boardwalks on the harbour front at Nambucca Heads. The evidence established that the Council was aware of problems that arose with the boardwalk from time to time, particularly when nails lifted. The trial judge had found for the plaintiff on the basis that the Council had failed to warn users of the boardwalk that that was an occasional problem. 87 Tobias JA (Handley and Beazley JJA agreeing) observed at [18]: "If it was otherwise appropriate for his Honour to have decided the case on the warning point, the onus lay upon the respondent to establish that her injuries would have been prevented had the Council erected the sign to which his Honour referred. The question of causation was to be determined subjectively: Chappel v Hart (1998) 195 CLR 232 at [32]. Normally evidence is led from a plaintiff that he or she would have avoided the particular conduct that led to his or her injuries had he or she been warned of the risk in question. Thus, in Chappel, Gaudron J at ([9]) said: 'Where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided.'" 88 In Nambucca, Tobias JA recognised that the prima facie sufficiency of a finding of duty and breach in order to establish causation does not usually arise in "warning" cases. Usually, some evidence would be required as to the plaintiff's response to a given warning. 89 This, however, is not a "warning" case. The Council submitted, nonetheless, that similarly to a case of a "failure to warn", the failure to fence the ramp operated as a deterrent and not a prevention. It was submitted that the plaintiff was required to prove what she would have done if the fence was in place. This was particularly so, it was said, given that she had responded to a dare. In my opinion, the analogy sought to be drawn by the Council between this case and that of the "warning" cases is not of assistance. In any event, it is hard to understand how the plaintiff might have lifted her bike over any such fence or been able to get onto the bike whilst actually being on the ramp. 90 Another challenge made to the trial judge's finding of a causal nexus between the injuries sustained and the breach was that, on the Council's submission, any nexus between the ramp and the first hump was broken by the fact that the plaintiff pedalled her bicycle, which generated the speed so that she became airborne. It is not apparent that pedalling alone would have built up enough speed to cause the plaintiff to become airborne. The Council did not call expert evidence. Mr Moir did give evidence on this point that was to the contrary of the submission, although the trial judge, in his reasons at [25], appears to have rejected Mr Moir's evidence as not being of assistance. However, as I have already explained, his Honour was entitled to use the experience of everyday life in finding that the ramp was a means of accelerating to the first jump. The Council's submission appears to overlook a fundamental principle relating to causation, namely, that it is sufficient if a particular found cause is a contributing factor to an injury. It does not have to be the sole or the most substantial cause of a particular injury. 91 The Council further submitted that, given that Mr Moir's evidence was rejected, there was no evidence upon which his Honour could conclude that a specific purpose of the ramp was to secure even starts and a build-up of initial speed by experienced riders, and therefore it was not open on the evidence to find that the speed at which the plaintiff approached the first bump was "too great for a person of her limited experience". It was argued that without such findings, causation could not be proved. It was part of this submission that there was no finding, and there could not be any finding, as to whether the build-up of speed was the result of pedalling alone or whether the build-up could only have occurred as a result of the ramp. It was submitted that without this finding, causation could not be proved. 92 Although his Honour rejected the evidence of Mr Moir, the plaintiff's expert, (see judgment [25]), it is necessary to have some regard to it for present purposes. Mr Moir said that one of the relevant factors is the speed at which the bike arrived at the first hump. The speed was determined by a numbers of factors, including the proximity of the ramp to the hump, the gradient of the starting ramp, whether the rider pedals or brakes during the lead up to the hump. He was of the opinion, however, that in this case, the factor that had the greatest effect was the height of the starting ramp. His Honour independently came to the conclusion and it is a matter of common sense. 93 Mr Moir also gave evidence that he had done calculations that indicated that the velocity generated by the bike commencing its downward run on the ramp from "2 metres up the ramp" was such that the front wheel would leave the surface at the first hump. Objection was taken to this evidence on the basis that it was not material contained in Mr Moir's report. However, the trial judge appears to have admitted the evidence on the basis that it accorded with the evidence in the case that that is what had happened.

Conclusion on causation 94 The starting point for a consideration of causation in negligence is the statement of Mason J in March v E & M H Stramare Pty Limited (1991) 171 CLR 506 at 515 that causation was ultimately a matter of commonsense and "not susceptible of reduction to a satisfactory formula". 95 In this case, as in a great many negligence cases, there is no precise evidence of the plaintiff's speed or of other dynamic factors that were integral to the accident occurring. However, there was evidence that the slope was steep. His Honour made a finding that the starting ramp was intended for the build up of speed to allow airborne propulsion over the first hump. The plaintiff was inexperienced, became airborne over the hump and lost her 'equilibrium' or balance. The speed that the starting ramp generated was a, if not the, critical factor in these dynamics. His Honour found that failure to fence off the starting ramp was a breach of the Council's duty and that finding has not been found to be erroneous. Had the plaintiff not been able to access the starting ramp, commonsense dictates that she would not have become airborne. Had she not become airborne, the accident would not have occurred. It follows from this process of inferential reasoning that the basis upon which his Honour determined breach was available to him.

Grounds 1, 2 and 3 on the cross-appeal: Liability 96 The Club raised three grounds relating to liability as follows:

1 His Honour erred in finding that the BMX club owed the plaintiff a duty of care in respect of the ramp

2 His Honour erred in finding the BMX club negligent in failing to fence the starting pad and ramp

3 His Honour erred in finding that fencing the ramp would probably have prevented the fall or made it less catastrophic 97 It will be recalled that the Club contended that it did not owe the plaintiff a duty of care. As I have already indicated, the track was designed and built by the Club pursuant to a development consent given by the Council. The track was required by Council to be open and available to members of the public at all times other than when it was being specifically used by the Club for its own activities. Although the Club had the ongoing management of the track, that did not extend to the "day to day management of it". The Club submitted that its ability to be able to fence the track or part of it was dependent upon Council approval and that the Council had adopted a policy not to fence any part of it. It was submitted in those circumstances, and in circumstances where his Honour rejected the plaintiff's case based upon the inadequacy in the design and construction or maintenance of the track and further, in circumstances where it was established that no other BMX track in New South Wales had its starting ramp fenced, there was no duty owed to the plaintiff in this case to fence the starting ramp. 98 Whilst it is true that Council approval was necessary to erect a fence, it was not submitted that, had such approval been sought at the time that the development application was initially made, any part of the design that involved fencing off the starting ramp would have been rejected. The Council's policy related to closing off the entire area, so as to make it not accessible by the public. That is a different matter altogether. It is apparent that the Club's focus in the management of the track was to provide a facility for BMX riders, especially competitive riders. They conducted "coaching clinics", which might be thought to indicate that some degree of training, experience and expertise was involved in the sport. In the minutes of an open meeting of the Club held on 31 January 1991, it was agreed by the members of the Club present, "that there is a need to create a safe but exciting track suitable for all levels of expertise" (emphasis added). At a meeting on 26 March 1996, an announcement was made that the Club was "to host a round of the world cup series". The track was also used for State titles. Further, the evidence was that the club conducted a formal race meeting every second weekend of the year. In between times, the club used the track for things such as training, coaching and track maintenance. These matters indicate that the use of this track was essentially designed for competitive and sporting purposes, not for mere recreational use by unsupervised and inexperienced children/teenagers. 99 The Club also relied upon the fact that a defendant is not required to take steps to guard against the risk of injury that is obvious to and most easily avoided by a plaintiff exercising proper care for his or her own wellbeing: Brodie v Singleton Shire Council; Romeo v Conservation Commission of Northern Territory; David Jones Limited v Bates [2001] NSWCA 233; Richmond Valley Council v Standing (2002) 127 LGERA 237; [2002] NSWCA 359; Hastings Council v Giese (2003) 127 LGERA 109; [2003] NSWCA 178. Nor, it was submitted, is a defendant required to take steps to guard against the risk of injury that results from a plaintiff's deliberate or reckless behaviour: Morgan v Sherton Pty Limited (1999) 46 NSWLR 141 at 144; [1999] NSWCA 60; Rundle v State Rail Authority of New South Wales [2002] NSWCA 354; Ratcliff v McConnell [1999] 1 WLR 670 at 683. 100 The Club further contended that even if a duty was owed in the circumstances, it did not follow that the failure to eliminate the risk of a person in the plaintiff's position riding down the starting ramp was negligent on the basis that the risk was reasonably foreseeable and preventable: see Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, where McHugh J said at [102]: "Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge." 101 This, of course, is a reiteration of what was said by Mason J in Wyong Shire Council v Shirt at 47-48. 102 Adopting this approach, the starting ramp was designed and constructed at a gradient and of a length as an aid to speed in a competitive sport that was intended to be "exciting". The sport itself was of such a nature as to require specialised coaching. This particular track was of a competitive standard. It was of a sufficient standard to be the venue for the State championships and "world cup series". The ramp constituted a risk of injury to those who used it. This was particularly so in the case of inexperienced riders and even more so in the case of children. It was known that the track posed a risk of serious injury. In those circumstances, I am of the opinion that "reasonable members of the community in the defendant's position" would consider the risk to be of such a nature as to require preventative action. The preventative action called for was itself not great. It was for the provision of fencing that would make the ramp inaccessible except for users under supervision. 103 In my opinion, it is not relevant that there is no "industry practice" to fence starting ramps. There was no evidence as to the circumstances in which the use of other tracks was permitted. I am also of the opinion that it is irrelevant that skateboard ramps are freely available to children throughout the State. The dynamics of skateboard ramps are entirely different. The mechanism of use is different - a skateboard as compared to a bike. The gradients are different and their purpose is different - in particular, the purpose is not to build up speed as part of a forward propulsion towards a series of humps. 104 I have already dealt with the question of obviousness. As I have indicated, obviousness is not determinative of breach. In this case, I am of the opinion that the fact that the risk was obvious is one that tells against the Club. It ought to have realised that the risk to young and inexperienced riders, including children whose natural tendency would be to take risks and even skylark, was such that it breached its duty of care in failing to take reasonable steps to avoid the risk. 105 The conclusion I have reached on causation in relation to the Council also applied to the issue of causation in relation to the Club.

Ground 4: Contributory negligence 106 The trial judge found that the plaintiff was guilty of contributory negligence and that her damages should be reduced by 20 per cent. In reaching this conclusion, he noted that she was almost 14 years old at the time of the accident and had a duty to take care of her own safety. She had been told not to go to the BMX track by her parents, because they considered it was dangerous, and also that she had ridden down the ramp as a result of a dare by a friend who was not prepared to do likewise "presumably because of the apparent danger": see judgment at [39]. 107 The Council contends that his Honour's finding of contributory negligence was manifestly inadequate. 108 The Council contends that, in addition to the findings made by the trial judge as to why the plaintiff was contributorally negligent, he should have added that the plaintiff was reckless or careless, in that she had pedalled down the ramp, trying to build up speed as she approached the first hump. Further, the Council relied upon the fact that the plaintiff's bike was fitted with brakes that she could have used to reduce her speed. It was submitted that those factors found by his Honour, plus the additional factors relied upon by the Council, should have sounded in a greater apportionment of contributory negligence. 109 The principles governing an appeal from an apportionment by a trial judge for contributory negligence were stated by the High Court in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492. In that case, the Court stated at 493-4: "A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) 66 [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 110 This principle has been consistently applied. As Hayne J observed in Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157], "[f]indings about apportionment of responsibility are not lightly to be disturbed". His Honour then set out the above passage from Podrebersek. In Liftronic Pty Limited v Unver (2001) 75 ALJR 867; [2001] HCA 24 Gleeson CJ at [2] applied the passage in Podrebersek to which I have just referred. Kirby J pointed out at [90] that the questions of contributory negligence and apportionment are always questions of fact. Although Liftronic involved an apportionment by a jury, the principles stated in Podrebersek were confirmed. 111 In my opinion, the Council and the Club should bear the major proportion of the blameworthiness for the accident. For the reasons I have given, and as found by the trial judge, each failed in its duty of care. The plaintiff was young and was behaving in a way typical for persons of her age - exhibiting a curiosity in going onto the platform in the first place, and in responding to a dare. That is the type of spontaneous and/or reckless behaviour typical of children of that age. In my opinion, no error has been shown in the assessment of contributory negligence by the trial judge.

Ground 5: Apportionment 112 The trial judge found that the parties should be equally liable for the plaintiff's damages. Both defendants contest this finding. 113 The Council contended its liability should have been found to be less than the Club's, given that the Club had the 'day to day' management of the track, and because its members: "… were familiar with the details of BMX racing 'including presumably the use, significance and effect of the starting ramp and had been responsible for the original design of the track'." 114 The Council further contended that his Honour failed to distinguish between the Council's responsibility for the initial planning, that is, its role as the consent authority, and the Club's ongoing control. Reliance was also placed on there being no 'industry practice' to fence starting ramps. Importantly, the Council submitted that as the negligence was founded in the failure to appreciate the danger posed by the starting ramp to inexperienced riders and the knowledge of that matter lay with the Club, the Club should bear the major proportion of the liability to the plaintiff. 115 The Club responded by pointing out that its use was subject to the permission and control of the Council and that it was the Council's decision that a significant use of the track was to be for public recreational purposes. In determining that use the Council had made a decision not to fence the track. 116 The Club also submitted that the trial judge erred in finding that the Club had the 'day to day' management of the track. I agree that the Club did not have the day to day management of the track. However, as discussed above, it had designed and constructed the track and had a significant role in its management. 117 In Vinidex v Theiss [2000] NSWCA 67 Rolfe AJA (Sheller and Fitzgerald JJA agreeing) said at [29]: "First, the principles relating to the apportionment of liability caused by negligence and appellate deference to the discretion exercised by the tribunal of fact are well established: A.V. Jennings Construction Pty Limited v Maumill (1956) 30 ALJ 100; Roads and Traffic Authority v Scroop & Ors (Court of Appeal - 30 September 1998 - unreported) and Oxley County Council v MacDonald ( 1999) NSWCA 126. Secondly, the Court must have regard to what is just and equitable and, in doing so, it must make a comparison of the culpability and of the acts of the parties causing damage and, thus, to the relative blameworthiness and the relevant causal potency of the negligence of each party, and to the whole conduct of each negligent party in relation to the circumstances of the accident by way of comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492; Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) and James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45." 118 The principles in Podrebersek to which I have referred above also apply to a finding of contributory negligence. 119 I am of the opinion that no error has been shown in his Honour's apportionment as between the Council and the Club. The Club could and should have submitted a design that fenced off the starting pad and ramp. The Council as consent authority could and should have required that as a condition of its consent. Those failures are of the same order. This Ground should be rejected.

Grounds 6-8C: Nature and extent of the plaintiff's disabilities 120 In Grounds 6-8C the Council challenges the findings of fact made by his Honour as to the nature and extent of the plaintiff's disability. These findings were substantially in favour of the plaintiff and underlay his Honour's award of damages. The challenges to his Honour's findings were detailed and are considered below. During the course of oral argument on the appeal, senior counsel for the Council submitted that the failures and errors in his Honour's judgment effectively amounted to a failure to fulfil the judicial obligation to analyse the evidence and to give adequate reasons for decision. This submission was more encompassing than the specific challenge to the adequacy of reasons made in Ground 8A. 121 The Club's cross-appeal raised the same Ground and, for the most part, it relied upon the submissions of the Council. 122 The findings of fact made by his Honour as to the nature and extent of the plaintiff's disability are to be found in judgment [77]-[78]. They were as follows: "[77] I am satisfied that the plaintiff exhibits a number of symptoms common to persons suffering traumatic frontal lobe damage including change of personality, lack of insight, disinhibited behaviour, lack of planning, organisation and motivation, concrete thinking and some difficulties with memory, she is easily distracted, expresses opinions bluntly and has a loss of sensitivity and control over impulsive aggression amounting to rudeness. She is certainly not as affected as a number of other brain-damaged plaintiffs one sees in the courts, but her problems are nevertheless significant and real.

[78] She has retained a substantial degree of her intellectual capacity and a fair share of post-accident memory, but is at times forgetful. She can manage small amounts of money such as household, and motor vehicle expenses and her disability allowance, and read novels, including 'Cross-stitch' (Ex 5), but at times she needs to ask her mother to explain or remind her what she has read. She also suffers intermittent loss of balance and residual of facial scarring which she is able to substantially disguise by the use of make up." 123 As the challenges made by the Council to these findings involve a challenge to the acceptance and/or treatment of nearly all aspects of the evidence that related to each particular finding it is necessary to deal with each Ground and with the evidence in more detail than might otherwise be the case.

Ground 6: His Honour erred in admitting the evidence and/or gave excessive weight to the evidence of Ms Potter (Exhibit V) which was based on untested evidence and failed to consider other relevant evidence 124 Centrelink had engaged Essential Personnel, an employment agency specialising in finding work for disabled people, to assist in finding the plaintiff suitable work. Ms Potter was an employment consultant with Essential Personnel and gave evidence that she considered the plaintiff was unemployable. Ms Potter had extensive experience in retail and had spent a number of years with Essential Personnel dealing with disabled youth. Ms Potter interviewed the plaintiff and arranged for her to undertake the 'Becoming a Worker Course' offered by Essential Personnel. Whilst she was undertaking that course, Ms Potter arranged for the plaintiff to have work experience with the retailer, Best & Less. Ms Potter arranged the plaintiff's introduction to the Store Manager, maintained close contact with Essential Personnel's trainer allocated to the plaintiff, Ms Randall, and attended the store on a number of occasions to assess the plaintiff's progress. Ms Potter also had a number of discussions with Ms Randall in relation to the plaintiff's work performance at Best & Less. 125 In a statement given on 8 April 2004, Ms Potter stated: "15. Mary Ann [Randall] spoke to me on a number of occasions about her difficulties with [the plaintiff]. She did not want to attend Best and Less with [the plaintiff] because of her behaviour.

16. [The plaintiff] was not given a permanent job at Best and Less. The comments made by the staff at Best and Less are contained in the document marked "A".

18. My findings of [the plaintiff] were as follows: i. Her behaviour was completely unacceptable in a workplace. [The plaintiff] was often abusive. Her behaviour included swearing and insulting both other employees and customers.

ii. She seemed unable to follow instructions; iii. She was unable to cope with any criticism whatsoever and insisted on doing things her way.

19. Based on my experience I do not believe [the plaintiff] is employable on the open labour market." 126 This statement was admitted as Exhibit V.

Objection to Exhibit V 127 Both senior counsel for the Council and the Club had objected at trial to the admission of the above paragraphs of Exhibit V on the basis that the material was hearsay or, in the case of paragraph 18, was a conclusion drawn from material which was not in evidence. Objection was also taken to paragraph 19. An overall objection was taken based upon s 135 of the Evidence Act 1995 (NSW) (the Evidence Act). 128 Senior counsel for the Club did not object to the admission of the material that was annexed as "A" at paragraph 16 of the statement. Annexure A comprised the business records of Essential Personnel relating to the plaintiff. Subject to rejection under the discretionary provisions of s 135, the documents were admissible as business records pursuant to s 69 of the Evidence Act. 129 An examination of the documents contained in annexure 'A' reveals that an assessment was made of the plaintiff during the course of the work trial by persons including Ms Randall, whose job it was to make such assessment, that indicated that she exhibited behaviour that was inappropriate and of the type to which Ms Potter referred at paragraph 18 of the statement. As I discuss more fully below, Ms Potter also based her opinion on her own attendance at Best & Less and her personal observations of the plaintiff during the course of the period of work experience. Ms Potter was a specialist consultant in the training and placement of persons with disabilities. The views that Ms Potter expressed in paragraph 18 were matters in respect of which she was qualified to give opinion evidence, given her experience and training, and there was material available to her upon which she could form such opinion. The ultimate conclusion in paragraph 19 of her statement was likewise an expression of opinion within her area of experience. These paragraphs were thus admissible: Evidence Act s 79. 130 Senior counsel for the Club also separately objected to paragraph 15 on the basis that it was hearsay. Senior counsel for the plaintiff indicated to the trial judge that, if necessary, evidence would be called as to the attempts made to find Ms Randall. However, without further relevant comment, his Honour admitted the evidence, together with annexure A. 131 Paragraph 15 of the statement was not admissible. It was hearsay evidence and did not form part of a business record and was not in admissible form. Having regard to the comments made by senior counsel for the plaintiff as to the apparent inability to locate Ms Randall, the plaintiff could have utilised the provisions of ss 63 and 67 of the Evidence Act in order to have such hearsay evidence admitted. That, of course, would not have taken account of the inadmissible form in which paragraph 15 was cast, although form is not always determinative of admissibility and, in any event, could have been attended to in Ms Potter's oral evidence. 132 However, the steps required under those sections were not taken and Ms Randall's daily written assessment of the plaintiff's work experience with Best & Less was also admitted into evidence as a business record (Exhibit P). That statement included a record that she had spoken to Ms Randall in terms such as "piss off" and "go home, you're a pain in the arse"; that there was an occasion where the plaintiff stormed off; that that there had been a complaint that the plaintiff was not behaving in the workplace in a professional way; that she had told a child that "the store monster" would get him if he did not behave; that she had told a customer not to put her fingerprints on the mirror (in the fitting room) or "[the customer] would be dead". Accordingly, given the very general nature of the comments made in paragraph 15, and the fact that the records of Ms Randall (Exhibit P) were admissible and admitted as a business record, his Honour's error is not one with which this Court ought to be concerned. 133 That leaves the overarching objection made under s 135 of the Evidence Act. Section 135 relevantly provides: "The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party …" 134 It was submitted that it was unfairly prejudicial to admit Ms Potter's statement, based as it was in part on the material in Ms Randall's statement, because Ms Randall was not available for cross-examination. 135 The observations made by Ms Randall in Exhibit P were made as part of her employment task as the plaintiff's supervisor. It was not suggested the intention of any cross-examination of Ms Randall was to throw doubt on the veracity of the observations. But even assuming that was the intention, the evidence was corroborated by similar observations made by staff members of Best & Less who also reported on the plaintiff's work performance. No error in the exercise of discretion under s 135 is demonstrated on that basis. If the intention was to cross-examine Ms Randall on her opinion as to the plaintiff's work performance, then Ms Randall was as much a witness available to the defendants as to the plaintiff. There was no suggestion in the plaintiff's case that it was proposed to call Ms Randall to give expert or opinion evidence and no Jones v Dunkel submission was put in respect of the failure to call her: Jones v Dunkel (1959) 101 CLR 298. However, Ms Potter gave oral evidence and was cross-examined about her opinions. In those circumstances, I am of the opinion that his Honour did not err in failing to exercise his discretion under s 135 to refuse to admit Exhibit V. 136 In its written submissions on the appeal, the Club referred to s 136 of the Evidence Act in respect of this evidence. Section 136 permits the Court to admit evidence but to limit the use to which it can be put. I have taken the reference to s 136 to be a typographical error. The transcript at trial refers to s 135 and an application of s 136 does not seem particularly appropriate in respect of this evidence. If it is not a typographical error, there was no basis for limiting the use of such evidence once admitted. 137 In my opinion, there is no appealable error in relation to the admission of Exhibit V.

Undue weight given to Ms Potter's evidence 138 The trial judge at [81] found that: "… the supervised (and assisted) trial at Best and Less was unsuccessful. Mrs Potter, a person experienced in placing disabled person [sic] in the workforce considered her to be unemployable now and in the future. I am of the same opinion." 139 As I have indicated, Ms Potter gave oral evidence and was cross-examined. She had visited the plaintiff during the course of her work experience at Best & Less on three or four occasions, each of about one half to three quarters of an hour duration. The documents in annexure 'A' to her statement included assessments made by employees of Best & Less in the course of the assessment of the plaintiff's performance during the course of her work experience. The assessments included comments such as: "excellent at greeting customers"; "excellent at assisting customers to pick out clothing - guides customers to correct dept"; "confident at using the machine to label prices"; "good time management skills - arrives on time and returns from breaks on time". These and other positive comments were made in a column headed "Areas of Strength". 140 There were also columns that allowed comments to be made in respect of "Areas for Improvement" and "Recommendations". The comments made in these columns included the use of inappropriate language; the need to be "less pushy"; the need to control the volume of her voice (that is, to keep her voice down); the need to be reminded to keep busy; that she needed to be consistently requested to tidy up her section; and needed an "improved ability to attend to customers without appearing too aggressive". Indeed, the comments in these columns were far more numerous than in the "Areas of Strength" column. 141 Ms Randall, the plaintiff's immediate trainer, had also prepared another document entitled "Industry Competency Checklist". That document appears to be a daily assessment of a number of areas of competency in respect of which the plaintiff was being assessed. It included, for example, a description of a particular task, such as "place sloppy joes on hangers", "unpack boxes of stock", or "fitting room attendant". Other parts of the document included assessments of matters such as "work behaviour", "reaction to supervision" and "work skills". Ms Randall's assessment, on the whole, was that the plaintiff was "competent" in these various areas of assessment, although not totally so. However, Ms Randall also made a number of the written comments to the effect that the plaintiff would need to "develop better social skills", noting: that at times she "caught customers by surprise with unnecessary sarcastic comments"; that she needed to develop her manners; that she was complaining about doing unpaid work experience; and that she did not like Ms Randall's continuous presence. Ms Randall's notes also included the material which was separately tendered as Exhibit P, to which I have already referred. 142 There was another document entitled "Work Trial Report", prepared by a Ms Davies, in which the plaintiff was consistently assessed as "Good" in respect of all relevant areas of evaluation: for example, volume of work, initiative, conduct and the capacity to develop. 143 Ms Potter was cross-examined as to why she had formed an opinion that the plaintiff was unemployable, given these positive work place assessments of the plaintiff. Ms Potter explained that it was common for positive feedback to be given by employers and supervisors, regardless of experience to the contrary, in their desire not to offend disabled persons. Ms Potter, whilst agreeing that it is sometimes difficult to know whether a person's skills would improve over time, said she would not have changed her opinion in respect of the plaintiff, even had she returned to Essential Personnel with further skills, because "I can't change what comes out of people's mouths, and that was uncontrollable". It is also noteworthy that the plaintiff was not, ultimately, offered a job with Best & Less following the work trial period. 144 The Council contends that his Honour erred in giving any or too much weight to Ms Potter's evidence given the contradictory, that is positive, evidence as to the plaintiff's work performance. The trial judge heard a great deal of evidence in this matter. He had an opportunity to observe the plaintiff over a lengthy period of examination and cross-examination by two senior counsel. Likewise, he had the opportunity to hear Ms Potter's evidence and cross-examination. His Honour was entitled to reach the view that he did in relation to the plaintiff's work ability to the extent that it was based upon Ms Potter's evidence, which is the matter under consideration at the moment. Subject to the matter of the admissibility of Exhibit V, with which I have already dealt, the Council did not point to any error in the trial judge's acceptance of Ms Potter's evidence, other than complaining that his Honour should not have given it any weight or that he gave it undue weight. Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved. That is not this case. There was ample evidence to support Ms Potter's opinion and she had appropriate experience herself to do so. In the absence of being able to identify any specific error in his Honour's acceptance of Ms Potter's evidence, this basis for Ground 6 should be rejected.

Failure to consider Dr Jones' evidence 145 That leaves the complaint under this Ground that his Honour failed to consider the evidence of Dr Lorraine Jones, the only medically qualified witness to whom Ms Potter's observations were put. Dr Jones was the Director of Rehabilitation at Prince of Wales Hospital. 146 Dr Jones provided a medico-legal report dated 23 April 2004, in which she said, in relation to the plaintiff's employment ability, that she did not believe that the plaintiff "was employable at this stage". She said: "She has such memory impairment and emotional lability that employment is not practical. To be employable she would need considerable supervision and training with an organisation such as Breakthrough." 147 In examination in chief, Dr Jones initially described the plaintiff's conduct in making comments of the type to which I have referred above as being "rather sweet", and exhibiting a lack of sophistication. However, under cross-examination she agreed that such conduct was inappropriate and likely to interfere with further employment possibilities, although she maintained that the plaintiff also displayed a "lack of sophistication". Dr Jones said that her conduct indicated that the plaintiff was not someone who should be working in a situation where she was required to deal with people. She suggested that the plaintiff might be better off if she engaged in process work, such as packing shelves. 148 Under further cross-examination, Dr Jones conceded that if two specialist disability training organisations had assessed the plaintiff as being unemployable, "it does look like she's unemployable", although she thought that the second organisation referred to in the question was not a specialist disability organisation. This was correct, although I consider it to be of little import. It simply meant that she had been assessed by one employment agency and one disability agency and found by each to be unemployable. 149 The trial judge did not refer to the evidence of Dr Jones when assessing the plaintiff's ability to engage in employment. Rather, he approached the question more broadly in the following terms: "81 The plaintiff left school about the end of November 1998 and except for a short period with the photographer at Wollongong and one shift a week stacking at Woolworths whilst Mrs Bamber was the store manager, she has not had any remunerative employment since that time. Some of the witnesses expressed the view that she could work in some forms of selected employment, but she has not been successful in finding a job although I am satisfied she has tried. She did not successfully complete a number of the vocational courses she attempted and her impulsiveness and lack of sensitivity make it difficult for her to relate to other employees or members of the public. She was found unsuitable to become a check out operator at Woolworths and the supervised (and assisted) trial at Best and Less was unsuccessful. Mrs Potter, a person experienced in placing disabled person [sic] in the workforce considered her to be unemployable now and in the future. I am of the same opinion." 150 The manner in which this particular challenge to the trial judge's reasoning was formulated was on the basis that his Honour failed to have regard to relevant evidence. Whilst his Honour did not specifically refer to Dr Jones's evidence on this issue, it is apparent from his judgment at [81] that his Honour fully appreciated that there were differing views as to the plaintiff's employability and decided that the evidence that he preferred was the evidence that indicated that she was not employable. There was ample evidence to support that view. 151 The evidence on this issue cannot, of course, be considered in a vacuum. His Honour had made findings concerning the dependency of the plaintiff on others (particularly her parents) and her ability to care for her child. If one returns to the evidence of Dr Jones, she had expressed the opinion, which was one she maintained during the course of her oral evidence, that although the plaintiff was able to do her housework, she was not able to do it well enough "to not need supervision and assistance". Those considerations were relevant to an assessment of her overall ability to function independently and in a responsible fashion as is required in an employment situation. 152 It must be remembered that the challenge is not that his Honour failed to express his for preferring the evidence of Ms Potter over that of Dr Jones. It is that he failed to have regard to Dr Jones' evidence. In this case, that challenge raises the question whether it was necessary for his Honour to have referred to Dr Jones' evidence before he could himself have made a determination in respect of the plaintiff's employability. This question has to be determined, having regard to the Ground of Appeal under consideration, which is relevantly, whether his Honour erred in giving excessive weight to the evidence of Ms Potter. Presumably, the basis of the submission is that in failing to refer to Dr Jones' evidence his Honour thereby failed to have regard to the contrary opinion given by Dr Jones, so as to properly weigh in the overall balance the totality of the evidence given. 153 The difficulty with this submission is that Dr Jones' evidence was not unequivocally to the effect that the plaintiff had some retained employment ability and it seems that her ultimate position was that she did appear to be unemployable. In that circumstance, it could not be said that his Honour gave undue weight to Ms Potter's evidence which was that the plaintiff was unemployable. Indeed, if one wanted to analyse a difference between Ms Potter's evidence and that of Dr Jones' it is that Ms Potter did not equivocate in her view, whereas Dr Jones did. A failure to refer to one witness' doubts does not, in my opinion, undermine a finding which accords with the evidence overall and it must follow that it could not be said that excessive weight was given to the evidence of the other witness, in this case, Ms Potter's. 154 His Honour could have set out long tracts of the evidence of the witnesses on this issue and done a comparison of the elements and points of departure from other views. However, given that the conclusion that the plaintiff was unemployable was open to his Honour on the evidence, it has not been established that he failed to have regard to other evidence on the issue, including that of Dr Jones.

Ground 7: The trial judge erred in finding that the object of the plaintiff attending her parents' workplace was to enable her parents to keep an eye on her during the day, and in finding that the plaintiff needed support for herself and her child 155 The plaintiff had attended her parents' workplace in the period prior to her marriage, which extended both before and after the birth of her child. The trial judge found that the object of the plaintiff attending her parents' workplace was to enable her parents to keep an eye on her during the day. It was submitted that his Honour failed to consider any alternative reasons for this, and in particular, failed to consider whether it was the close relationship with her mother rather than a parental wish to keep an eye on her. 156 The plaintiff's mother agreed in cross-examination that she and the plaintiff were very close and, if anything, had grown closer by reason of the accident. This is the evidence relied upon in support of this Ground of appeal. The evidence was given in the context of cross-examination as to the plaintiff's ability to function on a daily basis - for example, remembering to fill the car with petrol; remembering telephone numbers; and dressing appropriately when she goes out. In relation to the last issue, the plaintiff's mother said that the plaintiff discusses what she is wearing a lot but would no longer, for example, go to the shops wearing a bikini. It was after that series of questions that the plaintiff's mother agreed that her relationship with the plaintiff was close. 157 The plaintiff's mother was not asked whether that was the reason that the plaintiff attended at the business. For that reason alone, this Ground of appeal should be rejected. But in any event, it is quite unreasonable to require a trial judge to refer to every answer given by witnesses over a 21 day trial, covering a transcript of nearly 1,700 pages. The failure to consider this particular reason for the plaintiff attending the parents' business was of such a minor nature that it is appropriate to disregard it as an alternative reason. 158 It was submitted that there was other evidence which supported a conclusion that the plaintiff did not need to be supervised or her conduct overseen, such as attendance at a number of courses and her ability to continue working until early 2002. This submission significantly overstates what the plaintiff was able to do. As the trial judge pointed out at judgment [52] and [53], the plaintiff completed a Childcare Certificate course, although she had difficulty obtaining a pass in the "Handwashing Module" and thereafter did a cooking course with little by way of a skills-based outcome and failed to complete a hairdressing course. Her mother-in-law procured her a job at Woolworths one day a week in which she required additional supervision, and her employment was not continued when her mother-in-law was transferred to another store. Contrary to this submission, his Honour took these matters into account and remained satisfied that the reason for attending at her parents' business was to enable her parents to keep an eye on her. In this regard, it was not suggested that the plaintiff needed 24-hour care. Accordingly, the fact that the plaintiff undertook other activities during this time did not undermine the plaintiff's mother's evidence on this issue. This was a question of fact and his Honour's finding was based on evidence and was available to him.

Ability to care for baby 159 However, there is a more substantive reason advanced under this Ground relating to the failure to consider other evidence, and in particular the evidence of Dr Bell. A separate challenge is made to the failure of the trial judge to properly assess the opinions of Dr Bell and, in my opinion, rather than consider the challenges to specific aspects of evidence that were said not to be considered by the trial judge in relation to this singular factual finding, consideration should be given to the substantive challenge to the evidence of Dr Bell contained in Ground 8.

Ground 8: Mental capacity of the plaintiff: Acceptance of Dr Bell's opinions 160 The Council challenged the findings of the trial judge regarding the plaintiff's mental capacity, and in particular his Honour's acceptance of the opinion of Dr Bell and the insufficient weight given to certain of the other medical experts' opinions. 161 In relation to Dr Bell's evidence, it was submitted that his Honour failed to properly assess the opinions of Dr Bell and the assumptions upon which he relied. His Honour's findings in respect of Dr Bell's evidence are as follows: "[67] Dr Bell was cross-examined extensively (and on occasions made concessions which I regarded as appropriate but generally of only minimal significance in the overall picture), but his psychiatric opinions were not contradicted by other evidence . In general, I accept them, particularly as his opinions as to the manifestations of the plaintiff's condition were consistent with the observations of most teachers, friends and employers . He considered the most serious consequence for the plaintiff was her change in personality, particularly loss of sensitivity and loss of control over impulsive aggression and tactless communication. He said she had also lost or had diminished her other frontal lobe functions such as judgment, foresight and the ability to plan behaviour, and that the degradation of her personality rendered her unable to apply her preserved mental capacity to tasks well enough to be able to continue learning and go into useful employment .

[68] He noted that the plaintiff had found a potential mate with his own disabilities and thought there was a reasonable prospect of them doing well together, although Mr Kennedy-Gould's opinion was that long-term relationships by persons with frontal lobe damage were unusual, and the experience of the plaintiff's current marriage is not encouraging. Dr Bell doubted whether the plaintiff had sufficient judgment and planning ability to rear children adequately." (Emphases added) 162 The Council contends that his Honour, in making this finding, failed to properly assess the evidence. The challenge was made essentially on two bases. The first related to an incorrect interpretation and use of pre-accident school reports by Dr Bell. It was said that Dr Bell failed to understand that pre-accident the plaintiff had been performing "below average". The second was that his Honour failed to adequately assess other evidence on this issue, particular the evidence of the neuropsychologists, Drs Shores and Roldan.

(i) The use of the pre-accident school reports 163 The Council submitted that the trial judge failed to take into account the fact that Dr Bell had based his opinion on an incorrect interpretation of the plaintiff's pre-accident school reports, having relied upon a comparison of the school reports pre- and post-accident as showing a decline in the intellectual ability of the plaintiff, despite evidence that the school reports established the plaintiff's pre-accident ability to be below average. 164 Evidence was given by Mr Heininger, the plaintiff's English teacher, that prior to the accident the plaintiff was in the 'E and F classes', which indicated that a student was "not competent" or "not strong" in two of the three core subjects of English, Maths and Science. Students were assessed relative to their class performance. Thus, although the school report showed that prima facie the plaintiff was average or above average, this was in the context of her performance in an otherwise below average class. 165 The trial judge (at judgment [69]) observed that initially Drs Shores and Roldan had approached the assessment of the extent of the plaintiff's brain damage on the basis that pre-accident she was generally an average or above average student. His Honour indicated that once Mr Heininger had given his evidence and explained that the E and F classes in which the plaintiff was streamed related to students performing "below the line", Dr Roldan in particular revised his assessment as to the extent of loss of the plaintiff's intellectual function, but nonetheless conceded that "she had suffered a frontal lobe injury and had some residual procedural difficulties as a result of that". 166 His Honour did not make a similar comment in relation to Dr Bell. Rather, his Honour's findings in relation to the evidence of Dr Bell is totally contained in judgment [67]. I will return to this finding shortly. It is necessary, however, to first consider Dr Bell's evidence.

Damage suffered generally 167 In Dr Bell's opinion, the plaintiff had suffered brain damage. He deduced this from the nature of the severe impact itself, the sequence of the plaintiff's response immediately following the accident (being initial unconsciousness leading into coma) and, in particular, the duration of her post-traumatic amnesia, which extended beyond three weeks, a factor which he considered made it almost a certainty that she would suffer a persistent mental handicap. 168 Dr Bell noted that the objective signs from observations made at an early stage of the plaintiff's recovery indicated that she would likely be left with injury in the frontal lobes (the frontal syndrome), and further that, given the duration of the coma of seven days, she would be left with "severe permanent mental handicap". Dr Bell also relied upon observations made of the plaintiff post-accident, documented by the hospital, psychologists and various therapists, which he considered supported a diagnosis of long-term brain damage in the left frontal region resulting in the frontal syndrome. These signs included her early incontinence, initial difficulties with walking and balance, impairment of judgment and planning, impairment of verbal fluency and slowness of thinking, difficulty with complex thoughts, lack of insight and sensitivity to the feelings of others and impulsive behaviour. 169 In an interview with the plaintiff and her mother, Dr Bell observed that both had a "very pleasant and charming manner". He reported that the lengthy amnesia experienced post-accident was characteristic of brain damage, as was the loss of a sense of humour. Another indication of neurological disorder was the plaintiff's loss of coordination, particularly when feeding herself, and her bed-wetting experiences. Dr Bell reported that the mistreatment the plaintiff was subjected to by other students, including sexual assault, was indicative of the brain damage suffered by the plaintiff, causing the plaintiff to "encounter serious social difficulties". It also showed her vulnerability to exploitation and social estrangement due to her impaired ability to communicate with her peers and her lack of judgment and foresight. 170 In summing up the effects these injuries will have on the plaintiff's life, Dr Bell was apprehensive about her potential to maintain useful employment and to continue learning. He believed it would be difficult for the plaintiff to find an employment setting where supervision was sufficient for her needs. He foresaw problems in child-rearing due to her handicaps. 171 Dr Bell had reviewed reports from Mr Heininger, as part of the assessment of the plaintiff's disability. He observed that the reports indicated that pre-accident the plaintiff had appeared to be doing well at school. He said it seemed that the plaintiff "functioned in the superior range at least in terms of visuospatial abilities and probably in terms of verbal abilities with the exception of arithmetic". He noted, however, that the degree of decline depended on the streaming of classes. He said, for example, that the plaintiff's English marks indicated that she had better than average ability but observed that "it rather depends upon the streaming of the class in which she was. A very good mark in a very low stream may have been no better than average or even below it". It is of note that Dr Bell considered the plaintiff's performance in the post-accident verbal tests to have been so low, scoring in the sixth percentile, that it indicated a considerable deterioration from her pre-accident level "whatever the stream or level" she happened to be in previously. Finally, it was Dr Bell's opinion that the greater handicap experienced by the plaintiff was the loss of an ability to plan thought and action, rather than the loss of intellect itself, stating that "[t]he ability she retains has no practical value unless it is applied constructively". 172 Dr Bell referred to the plaintiff's marked improvement at school up until the accident, achieving progressively higher grades, including first and second place in particular classes. This contrasted with the plaintiff's attitude in class following the accident as revealed by comments made by teachers in post-accident school reports, such as her tendency of "phasing out" or needing rest, which Dr Bell interpreted as indications of excessive "fatiguability" of neuronal origin. When he compared this to comments made in her pre-accident school reports, Dr Bell concluded that the plaintiff had "lost her spark". Further, Dr Bell refered to comments by teachers as to the plaintiff's creative ability prior to the accident, an ability not measured by psychometric tests post-accident or by school grading pre-accident. 173 In reviewing a psychological assessment conducted in December 1995, Dr Bell regarded as irrelevant comments by the psychologists that before the accident the plaintiff had performed in the low average IQ range. This was based on Dr Bell's own interpretation of her school reports. However, he added the disclaimer that "I may be mistaken" and took that consideration into account. It is useful to set out Dr Bell's opinion on this particular point in full: "A neuropsychological assessment later in December 1995 confirmed that Miss Rigby had a variety of mental problems affecting concentration, attention, memory and personality. She still had elements of expressive dysphasia and also some elements of receptive dysphasia coupled with an alteration in the tone of her speech. On the Wechsler Intelligence Scale for Children - III (WISC III) she performed in the Borderline range with particular deficits of attention and concentration. The psychologists inferred from the school reports that before the accident the patient had performed in the Low Average IQ range. Comment: The psychologists did not use any test such as the National Adult Reading Test (NART) to assess premorbid function psychometrically. They may have good reason for arriving at their conclusion about the school reports, but I have obtained a different impression. I may be mistaken. They may be more in touch with what the gradings of the subjects were at Dapto. So far as I can manage, I have taken those considerations into mind and give the reasons above why I do not regard them as relevant ." (Emphasis added) 174 The comment emphasised in the above passage appears to relate back to the statement made at pp 5-6 of Dr Bell's report that: "[W]hen the duration of the PTA [post traumatic amnesia] exceeds three weeks persisting mental handicap is the rule, both for adults … and for children. A patient with this severity of head injury will probably not manage any further progress to improve upon the pre-accident occupational status ... As long as the amnesia does not exceed four weeks, the patient may achieve independence from the supervisory care ... but when it is one month or longer about half will be dependent for care and supervision on others in the long term and most will be on a disability pension ...". 175 Dr Bell also said in his cross-examination that: "I have resisted, and I still resist, you arriving at any anatomical diagnosis from school reports". 176 Dr Bell also considered that the psychologists' assessment of memory supported a conclusion that the plaintiff had "considerable impairment, worse for verbal than nonverbal function". 177 In his report, Dr Bell dealt with the plaintiff's memory loss as follows:

"For the assessment of memory the psychologists administered the WRAML in which they found fluctuation of performance. It seems that immediate memory was more severely impaired and in particular the verbal immediate memory. She did better at visual memory, which still scored in the 37th percentile compared to the 6th percentile for verbal memory. In regard to learning, she did more poorly with verbal than visual tests. Comment: The assessment of memory provides compelling indications that the patient had considerable impairment, worse for verbal than nonverbal function. For a person who came second in English, whatever the stream or level, a score for verbal memory at the 6th percentile indicates a considerable deterioration from her premorbid level. The greater impairment of verbal than nonverbal memory is consistent with the indications of greater injury in the left fronto-temporal distribution. As the assessment was undertaken within six weeks of injury, it reflects the acute effects of injury. With time a patient with head injury recovers at least some of the ability responsible for memory and IQ, but a severe drop indicates the type of incomplete recovery which would leave the patient with significant mental impairment in the long term.

Testing revealed considerable impairment of attention and concentration and a significant degree of distractibility. She had slowing of information processing and difficulties with planning, organisation and construction skills. She had a considerable reduction of verbal fluency. She still had signs of perseveration and difficulty with problem solving. Comment: The considerable impairment of verbal fluency results from injury in the left frontal region. It is no surprise, simply confirming all of the objective and clinical evidence accumulated to this point in time. Also the slowing of information processing is to be expected after such severe injury … The slowing is usually the result of frontal injury. The other specific impairments also result from frontal injury." 178 It is apparent from Dr Bell's evidence that his concern was not with the level of the plaintiff's pre-accident IQ functioning. Rather, he was concerned with the extent to which she had sustained brain damage. He was conscious of the possibility that his understanding of the plaintiff's pre-accident intellectual functioning, as he had interpreted it from her school reports, might have been wrong and he assessed the extent of her brain damage taking that possibility into account. It follows, therefore, in my opinion, that the challenge to the trial judge's judgment, namely, that his Honour had ignored the effect on Dr Bell's evidence of the fact that the plaintiff's pre-trial intellectual performance was not of a very high order, has not been made out. As Dr Bell's evidence demonstrates, that question was, in large measure, irrelevant to the matter for his Honour's determination, namely, the extent of the plaintiff's brain damage.

(ii) The assessment of Dr Bell's evidence and the existence of contradictory evidence 179 It was also submitted that his Honour erred in his assessment of Dr Bell's evidence. Senior counsel for the Council submitted that it appeared that the opinions of Dr Bell were central to all the trial judge's conclusions on disability. I agree with that observation. After all, Dr Bell provided the only psychiatric evidence in the case. However, it was contended that his Honour failed to identify the evidence that supported the particular findings that he made and in particular, whether those findings were specifically proven in respect of the plaintiff, or whether they were of a general kind that might be sometimes expected in persons with brain damage. It was submitted that the latter evidence was highly unreliable, particularly where the question was whether and to what extent the plaintiff's conduct was a result of brain damage or due to other factors, such as age-related or pre-existing personality factors. 180 The basis for this challenge appears to be founded on the cross-examination of Dr Bell. For example, Dr Bell was cross-examined on the basis upon which he linked the plaintiff's observed fatigue after the accident, and the extent of such observations, with an assessment of her brain damage. The cross-examination was as follows: "Joseph: Q. You say the science teacher's reference to her need to have a rest in class also indicates excessive fatiguability … This is in year 9; right? A. Yes. That's when fatiguability is most marked.

Q. You seek to make a general statement under this comment, rather than limit it to year 9. You seem to leave it at large, do you not? A. Well, I don't think so.

Q. Well, in the next paragraph, you are talking about fatigue generally. First of all, you introduce it as evidence of brain damage. You then refer to fatigue generally and identify fatigue as effort in concentration and attention, and seek to create an argument, can I suggest, out of absolutely nothing, except for one passing comment by a school teacher in year 9? A. Well, that's not the way I see what I've done.

Q. You were arguing the case as an advocate for the plaintiff, weren't you, in this comment? A. No, I wasn't.

Q. What other evidence, apart from that one comment, by the science teacher in year 9, did you have of fatigue in this plaintiff? A. Maintaining attention is one of the things I have mentioned there, but I guess the main point that matters is that, with somebody who has had as severe an injury to the brain as this, fatiguability is the usual thing." 181 In my opinion, this passage does not establish the complaint made by the Council. Dr Bell took into account such evidence as was available as to how the plaintiff had functioned subsequent to the accident. One observation that had been made of her was that she had exhibited fatigue. The evidence was that fatigue was an indicator of frontal lobe damage. Had that been the only evidence of brain damage, then doubt might well have arisen as to Dr Bell's opinion of the extent of the plaintiff's brain damage. But this was one only of many factors in the plaintiff's presentation (I refer to others below). Dr Bell's consideration was based upon evidence. In my opinion, it is not correct to say that Dr Bell made general observations only. Rather, he had regard to observed symptomatology and made a diagnosis based on that observed symptomatology. 182 Another passage of cross-examination relied upon in support of this challenge to his Honour's judgment was be found at transcript 636. That passage was as follows: "Q. I just want to deal with the concept of prediction. Are you simply saying there that the duration of the coma can be a fact which assists in predicting whether [the plaintiff] would be left with severe permanent mental handicap? A. Yes.

Q. You are not saying, are you, that the duration of the coma - it being seven days - therefore [the plaintiff] would be left with severe permanent mental handicap? A. No, I'm not saying that.

Q. Similarly, are you saying in the next line: 'It tallies closely with other criterion' - should that be criteria, I'm not sure? A. No. Criterion, that is the singular. 'It tallies with that other criterion.'

Q. 'That other criterion of permanent handicap', the duration of the PTA [post-traumatic amnesia]. Right? A. Yes.

Q. So again all you were doing was putting forward two recognised facts, medical facts, as being relevant to statistical prediction as opposed to the outcome of this case? A. It's not opposed to it. I'm just saying exactly what can be said.

Q. All I'm saying is that you are there referring to prediction rather than necessary outcomes? A. Yes.

Q. Can I just deal with prediction and the factors involved in that. There are other predictive factors other than the duration of coma and the PTA, aren't there? A. Yes.

Q. Do you refer to those in your report? A. Yes.

Q. What are they; the other factors? A. There are a great range of them. There's the imaging, the presence of those abnormal signs and where they are.

Q. Did you -- A. And there are the various complaints observed objectively in hospital like expressive and receptive dysphasia." 183 The cross-examination was of course much more extensive. It is not necessary to quote it in full. However, when consideration is given to it, it is apparent that Dr Bell was relying upon specific observed indications of brain damage in the plaintiff. 184 Senior counsel for the Council further submitted that the trial judge was wrong to label the concessions made by Dr Bell during cross-examination as of "minimal significance", submitting that the concessions were "given grudgingly by a highly argumentative witness". These concessions were listed in submissions, along with competing evidence that was submitted to be significant and which ought to have been considered by the trial judge in determining the weight that could be given to Dr Bell's evidence. 185 Reference was made to Dr Bell's concession that a patient's self-reports of change are often very unreliable. This question related to the possibility that the plaintiff's post-accident functioning was equivalent to her pre-accident functioning. However, Dr Bell refuted the suggestion that he was not able to say that the plaintiff's present intellectual and memory problems were different from what they would have been if there had been no accident. It was his view that the plaintiff's intellectual problems were different to what they would have been, absent an accident. 186 The Council next pointed to Dr Bell's "concession" that obtaining a driver's licence, as the plaintiff did, involves practical skills. The Council submitted that Dr Bell further conceded that this ability suggested that the plaintiff's abilities in those areas were "not severely impaired". That concession, however, was given in response to being asked if such an indication would arise if one were to obtain a licence on the first test, whereas in Dr Bell's report he noted that it took the plaintiff five attempts to obtain her 'L' plates. No more needs to be said in respect of this submission. 187 Council referred to Dr Bell's agreement that the plaintiff could work in a supervised environment. It submitted that this was in direct contradiction to the finding of the trial judge that the plaintiff was totally unfit for work. However, Dr Bell in his report said that "although true, such an environment would be rare and difficult to find". 188 Dr Bell conceded that "social difficulties" commonly caused by brain damage could also manifest themselves in people without brain damage. It was submitted that this evidence, combined with other evidence pointing to normal social relationships formed by the plaintiff post-accident and social problems encountered pre-accident, was inconsistent with the plaintiff having any significant post-accident social difficulties. This so-called concession is a matter of commonsense. It proves nothing in the Council's case. The submission otherwise does not accord with the evidence, which is discussed further below. 189 Next, Dr Bell agreed that the changes in "tone" in the plaintiff's diary entries post-accident could be consistent with the plaintiff having developed in the intervening period into a pubescent teenager. He also agreed that regaining a sense of humour, as happened to the plaintiff, requires a better function of the brain. In his report Dr Bell had stated that "those with severe brain damage don't recover their sense of humour". However, these improvements and developments in the plaintiff's functioning do not mean that the plaintiff does not have a significant degree of brain damage as Dr Bell at all times maintained. They simply mean that her brain damage may not have been as serious as first appeared. 190 Next, the Council submitted that the statement made by Dr Bell that the plaintiff would have some "limitations" concerning money is contradicted by evidence showing that the plaintiff looked after the family finances. Whilst that might be so, that is a fairly confined aspect of money management. 191 Finally, Council pointed to Dr Bell's assessment of the plaintiff and her mother as having similar "very pleasant and charming" personalities, claiming that given Dr Bell later stated that interrelationships could be a problem, it was not open to the trial judge to infer that the cause of such difficulties was the tort alleged. This presentation was only one aspect of her overall presentation. There was other significant evidence of the plaintiff's social interactions that indicated that she had significant problems. 192 The Council also contended that the trial judge erred in failing to assess competing evidence that indicated that Dr Bell's evidence should not be accepted or that his opinion as to the extent of the plaintiff's brain damage should not be accepted in full. This submission requires a consideration of the evidence of Drs Shores, Roldan and Jones. 193 It was submitted by the Council that the trial judge erred in failing to find that the evidence of Drs Shores, Roldan and Jones demonstrated that the frontal lobe damage suffered by the plaintiff resulted in only slight behavioural change, and affected the plaintiff only mildly in social situations. It followed on this submission that the plaintiff's ability to care for her child without assistance and to obtain suitable employment post-accident remained intact. 194 The trial judge referred to the evidence of the neuropsychologists, Dr Shores and Dr Roldan, in one paragraph of his judgment, stating that their respective assessments had initially been based on the assumption that, pre-accident, the plaintiff was an average or above average student. He noted that Dr Roldan had revised his assessment following Mr Heininger's evidence regarding the plaintiff's "below the line" academic standing before the accident. 195 His Honour also noted at [69] that Dr Roldan ultimately conceded that the plaintiff "had suffered a frontal lobe injury and had some residual procedural difficulties as a result of that". 196 Dr Roldan had also noted a number of instances where the plaintiff showed an ability to cope in a structured situation competently, and that her test results showed normal memory. As a result of these matters, he at one stage changed his opinion regarding the plaintiff's behaviour and personality. However, during his cross-examination, Dr Roldan resiled from the opinion elicited in chief to which I have just referred. A number of examples of the plaintiff's workplace behaviour were put to him. Dr Roldan stated that those examples, if true, would make him adhere to the opinion expressed in his first report that "she would have significant difficulties sustaining employment" although he did not consider that she was thereby unemployable. That question, of course, was a matter for the trial judge. There were medical and other expert views on it which, in their totality, strongly supported a conclusion that she was effectively unemployable. 197 Dr Shores' initial opinion was that the plaintiff had sustained frontal lobe damage, and since the accident had undergone personality changes making it very difficult for her to work with others and to relate in normal social activities. His opinions were based on clinical interviews with the plaintiff and her mother, psychometric testing, and a review of medical and school reports. In particular, he noted that there was nothing in the school reports to suggest that the plaintiff was of "borderline intelligence" pre-accident. 198 The Council submitted that "[t]he correction as to the interpretation of the plaintiff's pre accident school results meant that the plaintiff had not deteriorated intellectually". Dr Shores was cross-examined to the effect that his opinion could not stand due to the erroneous assumptions he had made regarding her school reports. Dr Shores did not agree, maintaining that his opinion was based on a number of inputs and that in any event the plaintiff's intellectual capacity had in his opinion declined. This is illustrated by the following extracts from Dr Shore's cross-examination. "Q. Well, I put to you … that the school reports do not demonstrate … any marked changes in her capacities as a student. A. I disagree. I think they do.

Q. Would you agree with me that … her results in English … appear to improve throughout the two years [post-accident]? A. No, there are ups and downs … [mathematics is] the only area in which there's been any improvement. In all other areas her position changed for the worse.

Q. The fact that she was able to maintain a good position in the class [post-accident] … is somewhat inconsistent, is it not, with her having suffered a deficit in her verbal intelligence? A. No , not if you look at the overall pattern of school results."

(Emphasis added) 199 The Council also challenged Dr Shores' opinion on the basis that his analysis of the plaintiff's faculties pre-accident relied not only on a misinterpretation of the school reports, but also fundamentally on the information given to him by the plaintiff's mother. Dr Shores denied this was so. He said his assessment was "a clinical judgment based on all the information available to me". Dr Shores agreed that the pre-accident information to which he had access was sourced from the mother and the school reports. That is not surprising. These were obvious, if not the only sources available to him, although the ultimate value of any opinion derived from those sources would depend on the credibility of the source, the correct interpretation of the source and the relevance of the source to the subject matter of the opinion. I have already referred to the relevance of the school reports. For the reasons discussed above, the use to which the Council seeks to put the school reports so as to undermine the opinions of Dr Bell in particular, but also those of Dr Shores, is misconceived. As Dr Bell said, it was the loss of the ability to plan thought and action, rather than the loss of intellect itself, that was significant. 200 The Council also challenged the weight of the mother's evidence contending, as I understand it that it was of such little weight that it did not provide a proper foundation for the expert opinions of Dr Shores. There is a separate challenge to the judgment on the basis of a failure to give adequate reasons for accepting the opinions of the lay witnesses including the mother: see Ground 8A. It will be necessary to give separate consideration to that issue. However, it is convenient to deal with certain aspects of the challenge to the mother's evidence here because it is directed to undermining the expert evidence. 201 It was submitted that the plaintiff's mother, on her own admission could not remember "a lot" about the plaintiff before the accident, and in particular how she got on at school. Certainly, the mother had limited recall as to pre-accident matters when giving evidence, but explained that it may have been due to "the shock" of the accident. This of itself may not undermine the evidence of Dr Shores, which was based not on courtroom evidence but on information given directly to the doctor by the mother at a date more proximate to the accident. The lapse of memory in respect of school performance was not of much significance, not only because it was proved independently but because it was of confined relevance as I have already explained. The information as to personality changes could be more significant, if the mother's recollection was affected. However, the information she gave to Dr Shores was given at a time more proximate to the accident and in circumstances not as stressful as the giving of evidence in court. But, in any event, there were other sources for this information that confirmed the information given by the mother, including comments made in the school reports and evidence given by Michael Medua, a friend of the plaintiff's both before and after the accident. 202 Another example upon which the Council relied was the plaintiff's mother's statement that the plaintiff could only drive "short distances". However, there was other evidence that she often drove from Kiama to Shellharbour, a distance of over 20 km. This is not a huge distance. Whether it is a 'short distance' would very much be a matter of perception. It must be remembered that the plaintiff lived on the New South Wales south coast. Whilst such distances might be considered a considerable distance in urban Sydney, that would not necessarily be the case in the area where the plaintiff lived. Such matters were not explored in the evidence, so that reliance on a single comment such as this is of little effect. But in any event, the mother's evidence as to the plaintiff's driving ability was to the effect that the plaintiff gets nervous and apprehensive if driving where she has not been before, and will stick to her local area. She gets distracted easily and is generally not a good driver. She also said the plaintiff would wait for off-peak hours to drive for 15-20 minutes along familiar roads. An assessment of all of this evidence is that the plaintiff has considerable limitations to her ability to drive. 203 Dr Jones also changed her opinion as to the plaintiff's capacity to function independently in her home environment upon moving to Kiama with her husband, after reading sections of the transcript of the plaintiff's evidence, from which she concluded the plaintiff was more capable than she had originally determined. The trial judge considered Dr Jones' change of opinion to be less reliable than the evidence given by a social worker, Mr Kennedy-Gould. His Honour's reason for preferring the evidence of Mr Kennedy-Gould was that he had actually observed the plaintiff in her home environment. The opinions and conclusions of Mr Kennedy-Gould accorded with his Honour's own observations of the plaintiff and which led him to find her "much more dependant on her mother and her potential mother-in-law whilst living in Kiama than Dr Jones seems to have accepted" (at [71]). 204 Mr Kennedy-Gould gave evidence, for example, that when he interviewed the plaintiff in her home situation, she was "monosyllabic and requiring prompting and reminder, spoke in a tone of some levity, rarely finishing an answer". He described her tone overall as being extremely light-hearted and then, at times, the plaintiff "spoke as though she was discussing another person or another situation that was not herself". Mr Kennedy-Gould expressed the opinion (see report dated 14 March 2003) that the plaintiff was "fatuous to the point of dissociation in discussing these highly significant areas of her future life". 205 He also reported a situation where the plaintiff had been prompted by her mother to make him a cup of tea. In his report, Mr Kennedy-Gould recorded that "[the plaintiff] made repeated mistakes in its preparation". He explained in his evidence that he had asked for "black tea without sugar". He said: "… one occasion she made milk tea; on another occasion she made black tea with sugar. Finally, she made the tea to order. She was - during that time she was also distractible by a number of other things … that were happening in the room." 206 Mr Kennedy-Gould also referred to a telephone call that the plaintiff had taken during the course of the visit in which she engaged in immoderate language and behaviour, notwithstanding her mother's requests to both moderate her language and terminate the phone call. 207 No error has been demonstrated in his Honour's preferring the evidence of Mr Kennedy-Gould. As I have stated a number of times, the acceptance of evidence and the weight it is given is peculiarly a matter for the trial judge. Matters such as were the subject of the evidence of these witnesses are themselves matters of evaluation and impression. There was a reasonable basis for his Honour to accept Mr Kennedy-Gould's evidence over that of Dr Jones, namely, the fact that he had made a personal observation of the plaintiff in the particular environment. There was no error in his doing so. For the reasons I have given, I am of the opinion that this Ground should be rejected. 208 My conclusion and findings on this issue also dispose of Ground 9, where it was contended that "his Honour erred in preferring the opinions of Mr Kennedy-Gould without giving proper weight to other alternative views given in evidence". 209 But, in any event, it is apparent from his Honour's finding that that the plaintiff has suffered frontal lobe injury that he had regard to the whole of the evidence. He also found (at [78]) that: "[s]he has retained a substantial degree of her intellectual capacity and a fair share of post-accident memory, but is at times forgetful."

This is a finding reflecting the very matters that it was alleged were not taken into account. 210 Further, the Council claimed that his Honour's comment that the plaintiff's outburst whilst being cross-examined "impressed me as a case of inappropriate behaviour consistent with the frontal lobe damage alleged" constituted an error of fact in that insufficient weight was given to the expert evidence that much of her behaviour was personality-based and unassociated with brain damage. Whilst there was expert evidence placing doubt on the extent and nature of the plaintiff's disabilities, there was no error in the trial judge preferring the expert evidence to the contrary, including that of Dr Bell and Mr Kennedy-Gould. In any event, the evidence of the experts upon which the Council relies, namely that of Dr Shores, Dr Roldan and Dr Jones, was not entirely inconsistent with his Honour's finding. Each of the doctors made statements about the inconsistency of some of the plaintiff's behaviour during the trial as being consistent with frontal lobe injury.

Ground 7A: Credit worthiness of the plaintiff 211 The Council submitted that the trial judge's finding as regards the plaintiff's credit worthiness, in particular that "there was no indication of faking or exaggerating her loss of memory or the degree of such loss", was made without a proper analysis of the medical evidence which demonstrated that the plaintiff sustained no loss of memory. 212 The trial judge's finding as to credit is contained at [62], where his Honour said: "The plaintiff came across as a frank and honest witness, she had a good command of language, understood questions, and her answers were responsive. She appeared to have a reasonable recollection of the last few years but her memory seemed very patchy of events prior to that time, and she had virtually no recollection of pre-accident events. She spoke in a pleasant, conversational manner and I noted that at times there were long delays while she thought of her answers, but I also made a note at the time that she appeared to be trying to answer the questions frankly. There was no indication of faking or exaggerating her loss of memory or the degree of such loss." 213 Evidence was given that memory is important in assessing brain damage. Dr Bell denied that the plaintiff was exaggerating her memory loss due to her variable memory recall. The closest the doctor came to agreeing with that proposition was with regard to one specific example, of the plaintiff being unable to recall her parents warning her not to use the track, when she had freely recalled it during consultation with the doctor. It was suggested to Dr Bell in cross-examination that this lack of recall could be due to the "sinister" objectives of litigation, to which the doctor responded "[i]t could be… litigation [is] a very important factor in any person's mind… [but] it can just be the vagaries of memory". The cross examination also included the following exchange: "Q. [after referring to the plaintiff's limited recall of events in court compared to her recollection 18 months earlier with the doctor]…would it be of concern to you as to whether that memory loss in a matter of 18 months to that degree has occurred? Would that be of concern to you in terms of attributing it to memory problems as opposed to deliberate actions on her part ? A. … [my answer to] 'does it have any clinical significance?'… would be "no" .

Q. But memory loss is an important issue in terms of assessing this lady's brain damage, isn't it? A. Yes.

Q. Can I suggest to you it is not consistent with any memory loss due to brain damage ? A. No ¸ I see that as being just the vagaries of memory. I see it as being part of the environment, the time …

Q. When the plaintiff gave you the history … she did not tell you … that she was relying on what anyone had told her, apart from that matter which we have already been to? A. That's correct ." (Emphasis added) 214 The overall effect of Dr Bell's evidence was that the plaintiff's memory had been affected due to her brain damage. His responses in explaining the "vagaries of memory" and the fact that one in three brain damage patients have "islands of recall", do not support there being error in the trial judge's findings on this point, as alleged by the Council. 215 The Council further referred to what was said to be inconsistent and unreliable evidence given by the plaintiff. This included her inability to recall, during the trial, events of the day of the accident, the time following her discharge from hospital, parts of her returning to school, various recollections of social meetings before the accident. Reference was also made to the plaintiff's patchy memory of her educational history and other matters. The plaintiff's evidence was said to be inconsistent because Dr Bell had given evidence of the plaintiff having an ability to recall events of the day of the accident and in hospital. He stated that her poor recall of post-accident events was not "in any way related to the brain damage". Dr Bell was being specifically cross-examined about sexual assaults upon the plaintiff at school. 216 The trial judge understood that the cross-examination relied upon here was directed to the plaintiff's credit. His Honour also made the finding at [78] to which I have referred that the plaintiff retained a significant degree of post-accident memory. Dr Bell explained why the plaintiff may have given inconsistent evidence at differing times. None of the isolated portions of evidence relied upon by the Council undermine his Honour's finding. Credit is essentially a matter for the trial judge to assess. The jurisprudence is established (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22) and does not call for exposition here.

Grounds 8B and 8C: Failure to draw a Jones v Dunkel inference in respect of the failure to call the plaintiff's father and brother as to the personality change following the accident. 217 Both the plaintiff's father and brother gave evidence. It is accepted that neither gave evidence in chief as to changes in her personality following the accident. It was submitted that his Honour should have drawn a Jones v Dunkel inference in respect of the evidence of both. 218 The operation of the rule in Jones v Dunkel was explained in Payne v Parker [1976] 1 NSWLR 191. Hutley JA at 194 stated: "[The effect of the rule] is to cut back some of the consequences of the basic assumption of the adversary system of proof, namely, that parties may withhold evidence, and witnesses who may assist the court, if it is to their own advantage. It grafts upon this immunity a proviso that, under certain circumstances, a jury should be told that inferences available on the evidence adverse to a party may be strengthened by the failure of that party to give evidence or call witnesses." 219 Glass JA dealt with the matter more expansively at 200-201. It is not necessary to set out his Honour's exposition in full. It is sufficient to refer to two matters to which his Honour referred. At proposition (2), his Honour stated: "[t]he reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default."

His Honour then, at proposition (6), said: "Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number:

(a) the missing witness would be expected to be called by one party rather than the other;

(b) his evidence would elucidate a particular matter;

(c) his absence is unexplained." 220 The submission made here does not involve a classic Jones v Dunkel point. However, in Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389, Handley JA at 418 stated: "There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However, I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates 'as the most natural inference that the party fears to do so'. This fear is then 'some evidence' that such examination in chief 'would have exposed facts unfavourable to the party': see Jones v Dunkel (at 320-321) per Windeyer J." 221 In this case, no questions were asked of the father in his examination in chief, nor were any asked in cross-examination. However, there was other evidence called on this issue, in particular, the evidence of the plaintiff's mother. The plaintiff's brother did not give evidence in chief on the issue, but was cross-examined as to how the plaintiff functioned in a variety of circumstances, post-accident. For example, he said that she could sit through movies and watch them; friends came to the house - the brother's evidence in that regard being that he remembered "a few people", indicating four in number; and that she got on well with her boyfriends, who had been two in number, and he had observed her getting along well with her husband. 222 In my opinion, there is nothing in this Ground that undermines his Honour's judgment. Even though the plaintiff's father undoubtedly could have given evidence on the issue, this was a long trial, in which it appears that every conceivable topic was covered one way or another and the cross-examination was extensive. Although, strictly, his Honour could have drawn an inference of the type available in accordance with the principles in Jones v Dunkel, a failure to do so would not have made out the case for the Council or the Club. 223 I am also of the opinion that a Jones v Dunkel submission is not available in the case of the plaintiff's brother, given that the defendant chose to cross-examine on the issue about which they now complain. Nor are the findings of the trial judge undermined in an appellate sense by the fact that the brother gave evidence of a wide range of capacities of the plaintiff that, it was submitted, were inconsistent with the "significant disabilities found by his Honour". His Honour, in his judgment, referred to many of these matters, including the submission by counsel for the defendants at trial, that there were many incidents where she had behaved appropriately or insightfully, so as to support a proposition that the continuing effects of her brain damage were not that great. His Honour rejected that submission, finding that the overall impression he got from the evidence was that she was severely and significantly disabled. It was open for him to do so. In any event, the brother's evidence does not support the defendant's submission. Rather, it demonstrated minimal social functioning for a person of the plaintiff's age. 224 Accordingly, I would reject Grounds 8B and 8C.

Ground 8A: Failure to give adequate reasons for decisions 225 The appellant submitted that the trial judge's reasons in relation to the plaintiff's injuries and disabilities were inadequate. This was the basis of complaint in Ground 8A. However, on the hearing of the appeal, this argument was developed as the underlying complaint to Grounds 6-8C. I propose to deal with the argument on that basis. In doing so, it will be apparent that some of the matters with which I have already dealt will resurface. 226 It was not contended at trial that the plaintiff did not suffer a severe brain injury. Rather, the significant issue at trial was the extent of any ongoing disability in relation to that brain damage. The defendants' case was that any ongoing disability was minimal. In dealing with that issue at trial, the Council provided extensive written submissions to the trial judge in respect of the medical and other evidence. It was submitted that his Honour had failed to address these matters. 227 The particular matters upon which senior Counsel for the Council focussed both at trial and on appeal were: the results of psychometric testing carried out by Dr Shores, the conclusions to be drawn from both the Glascow Coma Scale recordings whilst the plaintiff was in hospital and the extent of the plaintiff's post traumatic amnesia; the relevance of loss of memory, especially in relation to the plaintiff's credit; problems with her balance; the extent, if any, to which the plaintiff suffered any interference with her intellectual functioning post accident, the defendants' point being that she did not. In this regard, the Council had made extensive submissions in relation to Dr Shores' and Dr Roldan's evidence as well as Dr Bell's evidence. 228 Another matter about which particular complaint was made was the manner in which his Honour dealt with the plaintiff's credit. In this regard a significant attack had been made by senior counsel for the Council on the plaintiff's credit. Her cross-examination by Mr Joseph SC spanned approximately 100 pages of transcript. Again, the extent of her memory recall was an important part of this challenge and Mr Joseph cross-examined Dr Bell about that. Dr Bell agreed that she seemed to have ordinary recollection after the accident, although he considered that that memory did not "begin" until after she left hospital. In relation to her pre-accident history, Dr Bell considered that she had what he described as "shrinking or retrograde amnesia" which he described as being fairly typical. Dr Bell was also cross-examined about her performance on the Wechsler memory scale and accepted that it was quite reasonable that the plaintiff's results on that appeared normal. However, he also gave evidence that the clinical picture was that she still had memory impairment. 229 The trial judge did not refer to all of this evidence, of which, it must be said, there was much more. Rather, he made the credit finding at [62] to which I have referred and the further finding at [63]: "She generally conducted herself in the courtroom in a proper and appropriate manner, but there were a couple of occasions when she became frustrated and there were outbursts, particularly when recalled to give evidence in April 2004. The incident on 15 April 2004 was more dramatic than appears in the transcript (see T 950). Admittedly, she was being closely cross-examined by Mr Joseph SC and her credit was being put in issue, but what happened impressed me as a case of inappropriate behaviour consistent with the frontal lobe damage alleged." 230 Before turning to matters of principle, I will deal with one further topic on this issue. I have referred to his Honour's finding at [77]: see [122] above. 231 Council contended that this paragraph reflected generalised findings amounting to no more than conclusions and if such findings were to be made, his Honour should have analysed the evidence, including the competing evidence so as to explain why he came to these findings, rather than findings consistent with the case advanced by the plaintiff. The same complaint was made, overall, in relation to the manner in which his Honour dealt with the other evidence and other issues in the case, including the plaintiff's credit. 232 The obligation of a trial judge to give reasons was examined by this Court in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. Mason P explained that a failure to give adequate reasons for decision involved error giving rise to appellate interference at 431:

"[T]here is a miscarriage where what is and is not disclosed involves a breach of the principle that justice must not only be done but must be seen to be done. The relevant legal principles are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 280B-C and 281B-C and in Mifsud v Campbell (1991) 21 NSWLR 725." 233 Meagher JA explained at 443-444 that the discharge of the judicial obligation to given reasons required at least the following process of reasoning: "[T]he content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.

Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. It has been noted by this Court that the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system: Sinak v Tess (Court of Appeal, 15 March 1995, unreported). The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can. On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system. The costs and delays involved in litigation today are problems which have attracted enormous public attention, a plethora of government inquiries and the attention of the Australian Law Reform Commission. In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal." 234 In Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Hayne J at [129] - [130], explained that there is often a lack of precision involved in an argument that a judge's reasons were inadequate. He said: "129 Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

130 In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." (Footnotes omitted) 235 In this case, the extensive challenge made to the trial judge's reasons by the defendants appears to encompass both errors. However, an examination of his Honour's reason demonstrates, in my opinion, that this challenge has been made out. 236 The trial judge commenced his exposition of the case on injury and disability by referring to the plaintiff's immediate post-accident situation: [41] and progress until her discharge from hospital: [41]-[43]. His Honour next dealt with her post hospital care by Dr Hartman, her return to school, the difficulties that she there encountered; other post hospital medical care for her physical injuries and a referral to Dr Dus, adolescent psychiatrist, because of her continuing difficulties relating to her peers: [44]-[50]. His Honour noted that Dr Dus had obtained a history of depression in both parents and of chronic schizophrenia in her maternal grandmother. His Honour recorded Dr Dus' opinion that the plaintiff had "residual cognitive and emotional difficulties, marked emotional lability and poor impulse control." 237 His Honour next referred to the plaintiff's continuation at school until the latter part of Year 11 in the Work Skills class, and the ongoing difficulties that she had with other students: [51]. Thereafter, his Honour reviewed her attempts at undertaking a variety of courses and to engage in employment: [52]-[55]. The next episode in the plaintiff's life involved the commencement of her association with her husband, the birth of her child and the difficulties of the relationship. These were dealt with by his Honour at [56]-[59]. 238 His Honour dealt with the evidence of the plaintiff's mother as she observed the plaintiff immediately after the accident, in hospital, following her discharge from hospital and her return to school, and her ability in relation to maintaining a house, obtaining her driver's licence and her general ability to function, including her social life, which his Honour described as being "very little" as compared to what would be "common for persons of her age": [60]-[61] and [64]. 239 At [62]-[63] his Honour made credit findings in relation to the plaintiff. In particular, his Honour observed that she "came across as a frank and honest witness, she had a good command of language, understood questions, and her answers were responsive": see [211] above. 240 His Honour made findings as to her memory concluding that "there was no indication of faking or exaggerating her loss of memory or the degree of such loss". His Honour also recorded his observations as to how she conducted herself in the courtroom and concluded that, although overall her conduct was appropriate, there were times when she became frustrated, and there were outbursts. His Honour described one particular incident and concluded that it was demonstrative "of inappropriate behaviour consistent with the frontal lobe damage alleged". His Honour recorded that he made notes during the course of her evidence recording his assessment of the plaintiff's credit. 241 Thereafter, his Honour dealt with the medical witnesses. I have already referred to his assessment of Dr Bell's evidence at [67]. The significant finding that his Honour made in respect of Dr Bell was that "his psychiatric opinions were not contradicted by other evidence". In this regard, it must be noted that the Council and the Club did not call psychiatric evidence, although they called evidence from a neuropsychologist, Dr Roldan. His Honour made an observation as to the extensive cross-examination of Dr Bell and concessions which he made, noting that overall such concessions were "of only minimal significance in the overall picture". His Honour stated that generally, he accepted Dr Bell's psychiatric opinions. He set out what those opinions were. As I have already set [67] out in full at [161] above, it is not necessary to repeat those opinions here. At [68] his Honour referred to Dr Bell's assessment of the plaintiff's relationship with her husband and her ability to bring up her child adequately. In this regard, his Honour contrasted the view of Mr Kennedy-Gould in relation to the ability of a person with frontal lobe brain damage to have long term relationships. 242 His Honour then, at [69], referred to the evidence of the psychologists, Dr Shores and Dr Roldan. He made particular reference to the effect of Mr Heininger's evidence on the initial opinions given by both in relation to the plaintiff's IQ functioning. He recorded Dr Roldan's revised assessment as to the loss of intellectual functioning but noted Dr Roldan's concession that the plaintiff "had suffered a frontal lobe injury and had some residual procedural difficulties as a result of that". 243 Attention was then given to the evidence of Dr Jones, rehabilitation specialist, as to the extent of domestic assistance required by the plaintiff. His Honour referred to the reassessment that Dr Jones made after reading parts of the transcript of the plaintiff's evidence, and in particular Dr Jones' revised view that the plaintiff's "memory and concentration were not as bad as she previously thought". His Honour recorded Dr Jones' revised assessment for "assistance with the structure of [the plaintiff's] life" of two or three hours a week. His Honour then set out in why he rejected that assessment, preferring the assessment made by Mr Kennedy-Gould, and stating why he accepted Mr Kennedy-Gould's assessment: judgment [71]-[72]. His Honour then referred in more detail to the plaintiff's ability to care for her child: judgment [73]-[76]. These findings were particularly relevant to his honour's assessment of the award for damages based upon Sullivan v Gordon. 244 His Honour then reached the conclusion at judgment [77] to which I have referred as well as the following findings as to her ability to function, at [78], in these terms: "She has retained a substantial degree of her intellectual capacity and a fair share of post-accident memory, but is at time forgetful. She can manage small amounts of money such as household, and motor vehicle expenses and her disability allowance, and read novels, including 'Cross-stitch' (Ex 5), but at times she needs to ask her mother to explain or remind her what she has read." 245 These findings were made as a precursor to his Honour's determination as to the damages he awarded. It is correct to say, as senior counsel for the Council contends, that his Honour did not engage in a lengthy reference to the evidence. In my opinion however his Honour satisfied the basic requirements to give reasons as explained by Meagher JA in Beale. His Honour referred to the relevant evidence, he made the findings and he set out his reasons for doing so, including why he preferred some evidence over the other. 246 One might pause to ask in this case what would have been gained in setting out passages of cross-examination which were directed to minimising the extent of the plaintiff's continuing disability. To the extent that his Honour found that concessions had been extracted in cross-examination, he made an observation to that effect. More importantly, it must be remembered in this case that the essential evidence relevant to the extent of the plaintiff's disability was the psychiatric opinion of Dr Bell. There was no contrary psychiatric evidence. Dr Bell was cross-examined extensively as to conclusions that he had drawn and the basis upon which he had expressed opinions. A review of the cross-examination demonstrates that what his Honour found at judgment [67] is correct. 247 Nor, in my opinion, was there any error in the fact-finding process of the kind referred to by Hayne J in Waterways Authority v Fitzgibbon. Although his Honour did not set out in chapter and verse the many parts of the cross-examination that the defendant says ought to have been analysed within the body of his Honour's judgment, it is not apparent that his Honour failed to take those matters into consideration. On the contrary, I am of the opinion that he did so. I doubt that his Honour's judgment would have been the clear and logical exposition that it was unless he had a firm understanding of the facts, of the challenges made to the evidence of individual witnesses, and of the arguments made by the parties. In my opinion, this challenge to his Honour's judgment, which, as I have said, was the essential underpinning of Grounds 6-8C, should be rejected, as should those Grounds.

Ground 10: His Honour erred in his assessment of the extent of the care required by the plaintiff and her children. The assessment was both wrong and excessive 248 The plaintiff's mother gave evidence that the plaintiff needs prompting to undertake household chores, is distractible and frequently does half a chore and will not remember to finish it. If she gets interrupted whilst doing something, she forgets what she was doing. When the plaintiff was living at Kiama, the plaintiff's mother had given her a roster of chores to be done so as to organise her. However, she said that the plaintiff did not do things well and the plaintiff's mother would go, about once a fortnight, on her day off work, and clean and vacuum for the plaintiff. She also said that the plaintiff was forgetful and became highly frustrated. She cannot shop without a list and if she does go shopping having forgotten her list, she needs to return home to get it. She drives, but is only able to find a new place if a map is drawn for her where to go. 249 Dr Buckley, a specialist in rehabilitation, had assessed the plaintiff's requirement for domestic assistance at eight hours per day. He considered that she required a person to be with her to provide an "activity program". Dr Buckley considered that if the plaintiff was left unsupervised, she would: "… sit in her home, presumably watching the television or movies, or simply sitting, and that the quality of life that she then experiences will be greatly impoverished.

What she needs is someone as a starter and a guider." 250 Dr Buckley considered that the plaintiff did not have the initiative to do things herself, whether that be of a domestic, social, or recreational nature. He considered that the plaintiff needed assistance to become motivated so as to undertake different activities. 251 Mr Kennedy-Gould's opinion was to like effect. He considered that the plaintiff needed a great deal of planning assistance and motivation and that eight hours a day assistance would be reasonable. He maintained this view notwithstanding that senior counsel for the Club cross-examined him on the basis that the needs of the plaintiff could be accommodated by the provision of two hours assistance per day. 252 Given the range of the assessments made by the expert and experienced witnesses, the nature and extent of the plaintiff's brain damage and the type of assistance required, I am of the opinion that the assessment made by his Honour of three hours assistance per day was within an appropriate discretionary range. 253 In doing so, his Honour specifically rejected the opinions of Dr Buckley and Mr Kennedy-Gould, that the plaintiff required eight hours per day, as to do so would be "excessive" and "would be much more than the parents have been providing to date": at [87]. His Honour considered that the plaintiff required the same level of care as was being provided by the plaintiff's parents up to the date of trial, namely, three hours per day. It was submitted that this was excessive. In its written submissions at [198], the Council contended that if the result on the appeal was that the plaintiff's disability was found to be less than that found by his Honour, particularly with regard to matters of planning and caring for herself and her child, then the level of care required by the plaintiff was much less than three hours per day. It was submitted that this was particularly so when the plaintiff's memory was not affected by the injury. 254 For the reasons I have given, I have reached the conclusion that his Honour's assessment of the extent and severity of the plaintiff's brain damage and the effect it has on her ability to function on a day to day basis and over a range of activities, has not been shown to be in error. His Honour's evaluation of her need for future care was in accordance with that assessment. Strictly, therefore, this Ground does not arise. Nonetheless, I should make some short remarks about specific submissions made in support of this Ground, and in particular, the specific matter upon which the Council relied, namely, that the plaintiff's memory had not been affected by the injury. 255 In his report, Dr Bell had stated that: "[t]o specific questioning, the patient stated that her memory is 'not good'. She copes with it by making sure that everything has its place." 256 When asked about this in cross-examination, Dr Bell indicated that, usually, from a testing viewpoint, about two years after the accident, a person with brain damage is likely to return to the same level as before the accident but clinical and subjective matters could indicate otherwise. Dr Bell explained this further. He said: "Most patients with severe brain damage at the end of two years return to something like the level of the test performance that they did have before. Now, we are talking about a very small group of people who did have testing before the accident as well as after. But we can see from others who did not have that testing before injury, that the level to which they rise at about two and a half years would be roughly similar to what it was before. They still have impairment of memory from a clinical and subjective point of view, but the test results tend to return, in all except the very severe cases, to something like they were before injury ." (Emphasis added) 257 Specifically, in relation to the plaintiff's situation, Dr Bell said: "[s]he regards herself as having not as good a memory as she did before the accident, and she adopted one of the characteristic routines which patients with impairment of memory after brain damage adopt - that is, they put everything in its place, so they don't have to remember when they put it down or where. It's the only way they can find it. By the routine. They know, if they go to that particular spot, they'll find the car keys or wallet or whatever. Patients who do not learn to adopt that routine keep on losing things and mislaying objects." 258 The Council also contended that Dr Bell had agreed that the plaintiff would perform quite well in a structured situation, which indicated she did not require the amount of assistance found by his Honour. The evidence of Dr Bell relied upon to support this submission emerged in the following questions asked by the trial judge: "His Honour: You probably won't be surprised to know … I take it that a lot of brain damaged patients that you see would not be able to give very much history … is that so? A: No … [After a reference to seriously brain damaged patients being open and shut cases and thus settled without going to court, Dr Bell continued] It's the ones where they can give a history, particularly the ones who have frontal lobe damage, these are the cases which are most fought over, because they tend to look normal, look nothing like having the very severe handicaps that they do have.

Q: You probably won't be surprised to know then that the plaintiff gave evidence in this case for more than a day and I wouldn't be giving anything away by saying that her answers were responsive to the questions virtually throughout. That would not surprise you, I take it? A: No, your Honour. Indeed, the person with the frontal lobe syndrome functions quite normally in what technically we call a structured situation ." (Emphasis added) 259 Dr Bell further explained that that was so, notwithstanding that the situation was unfamiliar to the patient. He said that what the patient responded to was "the structure". 260 It was submitted that his Honour failed to consider why the duties required of a mother, etc, could not be considered a structured situation, for example, "get child up, feed, wash, etc", so as to indicate the plaintiff did not need as much assistance as was found. I consider that this misunderstands Dr Bell's evidence. Dr Bell was referring to a structure that was provided by a situation. Indeed, nothing could be more structured than the formality of a courtroom. The acts involved in having to get a child up, fed and washed, are actions which involve the initiative of the person undertaking the task. It is apparent that is not what Dr Bell was referring to. 261 The Council also submitted that it was the closeness of the relationship between the plaintiff and her mother that accounted for the amount of care the mother provided. Again, this is not supported by the evidence, the weight of which is the other way. For these reasons also, Ground 10 has not been made out.

Grounds 11 and 12: His Honour erred in awarding any damages for the care of the children of the plaintiff. Sullivan v Gordon was wrongly decided. It was not proven the child was born because of the tort; his Honour duplicated the damages in terms of the costs of care of the child with the costs of the plaintiff's care 262 In May 2002, the plaintiff became engaged to Gareth Bamber, a friend from school, and in about August of that year they commenced to live together at Kiama. They married in February 2003 and on 25 November 2003 their daughter Ivy was born. The marriage encountered some difficulties, the plaintiff leaving Gareth in about February 2004 and returning to live with her parents. She returned to live with her husband in May 2004 and then in June 2004, Gareth left. In November 2004, the plaintiff and her daughter moved back with her husband. They were living together at the time of trial. 263 A claim was made for the costs of care of the child on the basis that the plaintiff's brain damage reduced her ability to do so. The claim was made on the basis of the decision of this Court in Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338. His Honour noted that the factual situation here was different from that in Sullivan v Gordon, where the plaintiff had, as a result of her brain damage, become promiscuous and had conceived two children as a result of casual relationships. In this case, the plaintiff's child was born in what his Honour described as "a regular, apparently permanent relationship": at [90]. His Honour observed that, if not injured, the plaintiff would probably have had this or another child in any event. His Honour considered, however, that due to her lack of insight and appreciation of her condition and limitations due to her brain damage, she failed to realise that she would be incapable of adequately caring for her child and, in that sense, her decision to have the child was a consequence of the accident. His Honour considered that the causal link required by Sullivan v Gordon was made out. His Honour added that it ought to be sufficient for a plaintiff to show that the need for assistance in caring for a child was itself due to her injuries, without needing to analyse whether the decision to have the child was itself due to the accident. 264 Since his Honour's decision, Sullivan v Gordon has been overruled by the High Court: see CSR Limited & Anor v Eddy (2005) 222 ALR 1; [2005] HCA 64. The plaintiff, in her written submissions on the appeal, submitted that his Honour's determination of the award for damages of the care of the child did not necessarily depend upon the correctness of Sullivan v Gordon and that his Honour's award was consistent with the observations made by McHugh J in CSR v Eddy at [115]. 265 CSR v Eddy involved a claim by a plaintiff for damages in the Dust Diseases Tribunal of New South Wales, in which the plaintiff had claimed he developed mesothelioma as a result of exposure to asbestos in the workplace. Liability was admitted and the Tribunal awarded damages. The damages included an amount for the plaintiff's loss of capacity, including after his death, to care for his disabled wife within the principles stated in Sullivan v Gordon: see especially Mason P at 330-332. 266 It is necessary to understand the basis of the reasoning in CSR v Eddy in order to determine whether any claim for the care of the child can be sustained. Gleeson CJ, Gummow and Heydon JJ observed that the reasoning in Sullivan v Gordon was based on the rule in Griffiths v Kerkemeyer (1977) 139 CLR 161. Their Honours then said: "[21] … Griffiths v Kirkemeyer damages are awarded to plaintiffs to compensate them for the cost (whether actually incurred or not) of services rendered to them because of their incapacity to render them to themselves, not to compensate them for the cost of services which because of their incapacity they cannot render to others . In each instance there may be a 'need' for services, but it is a different kind of need, and the recipient of the services is different …

[23] It follows that so far as the reasoning in Sullivan v Gordon rested on the view that a Sullivan v Gordon claim has the same basis as a Griffiths v Kirkemeyer claim, it is erroneous. It cannot be said that the Sullivan v Gordon problem falls within the rules stated in the Griffiths v Kirkemeyer line of cases, or with any proposition logically deducible from those rules" 267 Their Honours rejected the contention that the outcome in Sullivan v Gordon could be supported in any other way. They recognised, (at [16]) however, that as had been determined in Burnicle v Cutelli [1982] 2 NSWLR 26: "… the lost capacity of injured plaintiffs to assist their families was compensable … if the loss was to be compensated, compensation was to be given not as special damages, but as part of general damages."

Their Honours added that such a loss could be compensated as part of general damages, but that it did not follow that general damages would compensate for all aspects of the loss of capacity. 268 The plaintiff contended, however, that there was still a basis for those costs to be awarded. As I understand it, it was submitted that the costs for the care of the child could be compensated under the Griffiths v Kerkemeyer head of damages. The plaintiff relied upon the statement of McHugh J at [115], where his Honour said: "[T]o the extent that Mr Thompson took pleasure in gardening and attending to the car, he would be entitled to damages for loss of amenity and enjoyment of life. To the extent that his injury prevented him from performing these tasks and necessitated the provision of services from another person, there is no reason why he should not be eligible for Griffiths v Kirkemeyer damages at the market rate for those services. The same is true in relation to the domestic duties that he had performed around the house." 269 McHugh J observed that the respondent's needs were the co-mingled needs of the husband and wife, but were no less the needs of the husband's because they were mutual. His Honour stated that it was an unfortunate aspect of the case that it was pleaded on the basis that the domestic work was performed for the benefit of the wife. 270 This paragraph does not assist the plaintiff, for the simple reason that his Honour made a specific award under Sullivan v Gordon for the care of the child, additional to the plaintiff's need for household assistance, which he had assessed under Griffiths v Kerkemeyer. As Sullivan v Gordon has been overruled, the award of damages made under that head must be disallowed.

Ground 13: the award of general damages was excessive 271 Immediately upon the accident occurring, the plaintiff was in a coma and remained in a coma for nine days and had post-traumatic amnesia for a period of about three weeks. She also suffered a severe de-gloving injury to her lip and major lacerations and abrasions to her face. She was in hospital for one month and during the time in hospital was observed to have post-accident impairment of judgment, planning and abstract thinking and poor short term memory. She showed some behavioural problems including agitation, tearfulness, perseveration of ideas, occasional urinary incontinence and mildly aggressive behaviour (judgment [43]). When she returned to school the following year, she experienced difficulty relating to other pupils and they to her. She suffered long periods of depression, although Dr Dus, child and adolescent psychiatrist, who attended the plaintiff after the accident, found that there was no evidence of Major Depression or other major mental illness, but that her residual cognitive and emotional difficulties, marked emotional lability and poor impulse control were likely to be due to "organic personality change secondary to the head injury". 272 At an early stage of recovery, Dr Hartman, neuropsychologist, reported low average results of the plaintiff in tests of her intellectual functioning, with particularly poor results on tasks involving attention and concentration (report 19 January 1996). At such an early stage, the plaintiff's fluctuating immediate memory and attention, and her slow speed of processing, were likely to improve in the Dr Harman's opinion. At a later date (19 April 1996) the Dr Hartman wrote a letter to Dr Raje, the plaintiff's consultant paediatrician, to the effect that he was concerned about the plaintiff's behavioural and thinking problems. In a further letter to Dr Raje (6 August 1996), Dr Hartman's diagnosis was more positive, such that he "could not detect any specific abnormalities" upon neurological examination. He noted only the intermittent dizziness experienced by the plaintiff and its resulting frustration causing her to "lash out", and additionally problems with "the higher centres, particularly with concentration and marked lability of her emotions". Six months later (3 February 1997) Dr Hartman stated he was impressed with her improvement and that there was nothing remarkable resulting from a physical examination (including neurologically), but that there were still many problems affecting her socialisation skills that may never be resolved. 273 However, on the next consultation (see letter 14 August 1997), Dr Hartman became concerned about the plaintiff's self-injurious behaviour, and referred the plaintiff to Dr Dus, adolescent psychiatrist. Dr Dus examined the plaintiff and prepared a psychiatric report, dated 21 October 1997. According to that report, the plaintiff revealed a history of peer difficulties prior to the accident, which were exacerbated by the accident such that she was "generally unaccepted" upon her return to school post-accident. 274 Dr Dus' report stated that the plaintiff's mother noticed that her confidence and grades were increasing in the months leading up to her accident. 275 Dr Raje reported on 8 February 1996 as to the plaintiff's "dramatic improvement", however, he noted that she still had problems with emotional lability and loss of inhibition. 276 A speech pathologist, Ms Judy Pearson, in a report dated 11 April 1996, commented on the "good gains" in all areas, but, relevantly, observed that the plaintiff's behaviour fluctuated depending upon the environment she was in. Another speech pathologist, Ms Ellie Ainsley, reported on 2 August 1996 that although the plaintiff had a number of areas of strength, she still lacked insight into the emotions of others and spoke in a loud voice with a sometimes inappropriate and offensive intonation. She considered that this, along with difficulties in auditory attention, would adversely impact upon the plaintiff's schooling. 277 His Honour made his findings in relation to the plaintiff's injuries and ongoing disabilities at [77]-[78] set out above. In addition, his Honour referred to Dr Jones' evidence as to her scarring, as follows: "[78] Dr Lorraine Jones described the residual scarring as follows: 'There was a scar under the nose, extending down to the top lip. There was a long scar extending laterally from beneath her left eye to lateral to her lip and below the lip. There were 3 other short scars near it. There were 6 parallel longitudinal scars on her neck on the left side. There were patchy scars 20cm in size on the distal right forearm and on the left shoulder. I should point out that these scars are superbly covered with make-up, so that she is an extremely attractive young woman in spite of this.'" 278 Having regard to the plaintiff's brain injury, frontal lobe damage and its consequences, including headaches and loss of balance, and her facial and other external injuries, including residual scarring, his Honour assessed damages at $200,000. He attributed $100,000 of that to the past: at [79]. 279 In my opinion, once his Honour's findings as to the extent of the plaintiff's injuries are accepted, there is no basis to interfere with the award of general damages, nor with his attribution of one half of those damages to the past. It is apparent that for a period of years after the accident, the effects of the plaintiff's injuries were severe. Not only was her brain damage at its most severe state, she was also seriously affected at a social and emotional level, all of which was attributable to her brain damage. She was sexually assaulted by boys at her school and her general interaction with her peers was seriously impaired. Not only were there difficulties at school, evidenced by comments in the school reports and in the evidence of Ms Pike, but she was effectively socially isolated, having few friends and her ability to successfully engage in productive activities had been seriously impaired. 280 The plaintiff will have significant problems in the future because of her brain damage, which according to Dr Bell's evidence, accepted by his Honour, was severe. 281 In my opinion, the award is not outside the discretionary range that could have been awarded and I would reject this Ground.

Ground 14: His Honour erred in the award of past and future economic loss 282 His Honour reviewed the plaintiff's work history since leaving school at judgment [81]. He observed that except for a short period of employment with a photographer and one shift per week for a short period, the plaintiff had not had any remunerative employment. His Honour referred to the evidence of some witnesses that she was capable of engaging in some forms of selected employment, but noted that she had not been successful in obtaining employment. His Honour accepted the plaintiff's evidence that she had tried to do so. He also observed that she had unsuccessfully undertaken a number of vocational courses. His Honour found that she was unemployable. 283 The Council contended that the plaintiff was dismissed from her employment at the photographic store for reasons unassociated with her disability. In my opinion, the evidence does not support that submission. The plaintiff gave evidence that she was dismissed after two specific incidents. She was then telephoned by the employer to say that there had been a number of complaints about her and he dismissed her. When she went to collect her pay cheque in the company of her father, she said that the employer yelled at her father: "it was like he didn't want to pay me". That employment lasted about a week. 284 I have already considered much of the other evidence relating to the plaintiff's employability in connection with the challenge made in Grounds 6 and 8 to his Honour's findings and reasoning. It is not necessary to repeat it. As those challenges have failed, this challenge must also fail. If the plaintiff is unemployable, as found by his Honour, there is no basis to make an allowance for a residual earning capacity.

Ground 15: His Honour erred in awarding the cost of administration of the award of damages 285 This ground relies upon the case sought to be made by the Council that the plaintiff has suffered brain damage to a limited extent only. In particular, the Council seeks to support its case on the basis that the plaintiff has been able to establish relationships, including a marriage, undertakes social activities, has completed TAFE courses, has obtained a car licence and is able to manage her money and her change. I have dealt with these matters at various places in my judgment. 286 As I have found that his Honour's finding of the extent of the plaintiff's brain damage has not shown to be erroneous, this challenge must also fail.

Ground 16: His Honour erred in not reducing the sum awarded to the plaintiff for funds management to take account of his findings on contributory negligence 287 This ground was asserted by the Council only, as the Club did not take this point at trial. 288 The Council's contention is that as his Honour reduced the plaintiff's award of damages by 20 per cent for contributory negligence, the amount awarded for fund administration in the sum of $461,969.50, should likewise be reduced by 20 per cent. The basis of this argument was that this head of damage was no different from any other award and likewise it should be reduced. 289 The response made by the plaintiff in respect of this ground is that as the agreed costs for fund administration was based upon the amount of the award of damages after the discount for contributory negligence, a reduction in the award for funds administration would be unjust. This in effect was the approach taken by his Honour. His Honour said at judgment [101] that 80 per cent of the agreed sum of $461,969.50 would not "in theory be sufficient to administer" the fund constituted by the award of the reduced damages. 290 The ground will only succeed if the Council is given leave to reargue the decision of this court in Nicholson v Nicholson (1994) 35 NSWLR 308. In Nicholson v Nicholson Kirby P at [29]-[30] stated: "I would accept the appellant's argument that to reduce this head of damages would involve a double reduction. The reason this head of damage is allowed is because the plaintiff is incapable (either intellectually or physically) of managing the damages which have been awarded. To reduce the fund management fee for contributory negligence would leave a plaintiff with inadequate funds to manage his damages. That would defeat the very purpose of providing damages on that head. Although the amount allowed for fund management is part of the damages recoverable, it would not be just or equitable to reduce this component for contributory negligence. This would especially be so in this case in view of the fact that the amount allowed for fund management was calculated on an already reduced figure. The underlying premise to recovery of damages is that the amount awarded should be just and equitable in the circumstances of the case … Justice requires that the fee for fund management should not be reduced for the contributory negligence which the Act requires the Court to fund although the basis of that claim was, in the particular facts of this case, causally irrelevant to the appellant's damage." 291 Meagher JA agreed. Mahoney JA took a different view, although his Honour observed that he was bound by previous decisions of the Court. Nicholson v Nicholson has been consistently applied by the Court since. In my view, this Court should continue to do so and I would refuse leave to reargue the decision. The ground of appeal must fail. 292 Accordingly, I propose the following Orders:

2. Vary the award of damages by deducting the amount of $101,684;

3. Verdict for the first respondent/plaintiff in the sum of $1,745,852.70 and judgment accordingly;

4. The appellant and second respondent/cross-appellant are to pay the first respondent/plaintiff's costs of the appeal and cross-appeal;

5. The appellant and second respondent/cross-appellant are to pay their own costs of the appeal and cross-appeal insofar as it relates to the issue of contribution. 293 IPP JA: I agree with Beazley JA and Basten JA. 294 BASTEN JA: I agree with the orders proposed by Beazley JA and her Honour's reasons, subject to the following comments.

Negligence: the issue 295 To establish negligence on the part of the defendants, the plaintiff needed to demonstrate that each of them owed her a duty of care, which it had breached. As Beazley JA explains at [32]-[35] above, the standard, content or extent of the duty may be identified by reference to the harm which befell the plaintiff: see Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at [14], [17] (Gleeson CJ) and at [103]-[105] (Hayne J relying on Brennan J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 487); Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [158] (Hayne and Callinan JJ) and see authorities discussed in McPherson's Ltd v Eaton (2005) 65 NSWLR 187 at [6]-[11] (Mason P) and [128]-[133] (Ipp JA); see also Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [75]-[77] (Ipp JA). 296 The existence of a duty of care was not in dispute: the standard, content or extent may have been identified with such precision that a conclusion as to negligence followed as a matter of course. Alternatively, the duty may have been broadly defined so that the key question was breach. In some cases the distinction between the existence of a duty and the question of breach is important; in McPherson's Ltd v Eaton it was necessary to distinguish questions of fact from questions of law. In the present case the approach was not important, as long as the real issue was clearly identified: see Dovuro Pty Ltd v Wilkins at [97]-[99] (Kirby J). There would remain, of course, a question of causation. 297 The question to be answered in the present case may be readily identified. The harm suffered by the plaintiff, as a 13 year old at the time of the accident, resulted from peddling her mountain bike down a ramp (or part thereof) at the commencement of a BMX track and losing control when she became airborne at the first hump on the track. The whole incident must have taken a matter of seconds; the precise manner in which she lost control and fell is not known and is largely irrelevant. It may be inferred that the fall resulted from a combination of speed and inexperience in handling the bicycle in such circumstances. 298 Thus, the essential facts and inferences were as follows:

(1) the plaintiff suffered injury as a result of a fall from her bicycle;

(2) the fall resulted from speed and inexperience on her part;

(3) she was able to achieve the relevant speed by cycling down a ramp constructed in part for that purpose;

(4) an intended purpose of the ramp was to allow riders to obtain sufficient speed to become airborne;

(5) the risk that an inexperienced rider achieving sufficient speed to become airborne might lose control of the bicycle was reasonably foreseeable;

(6) the ramp and BMX track were accessible to the public;

(7) the fact that unsupervised young people on bicycles might use the ramp and the track was reasonably foreseeable;

(8) access to the ramp and track were within the control of the defendants, and

(9) closing off the ramp to members of the public was a step which could reasonably have been taken by the defendants. 299 Each of these facts or inferences was a finding properly made by the trial judge. In order to establish negligence, only one issue remained, namely whether the defendants should, in their exercise of reasonable care, have blocked public access to the ramp. This was not a case in which the question of reasonableness was being addressed as a matter of hindsight, the nature of the risk having been apparent at all stages: c.f. Neindorf v Junkovic [2005] HCA 75; (2006) 80 ALJR 341, at [97]. 300 This was a constructed facility, not part of a natural environment. The fact that a recreational facility involved risks was a matter to be taken into account in making it available to the public without supervision: see [63] above, quoting Woods v Multi-Sport Holdings Pty Ltd at [37] (Gleeson CJ), referring to Rootes v Shelton (1967) 116 CLR 383 at 387. The ability to become airborne was undoubtedly part of the intended excitement of the feature, and the risk of an inexperienced airborne rider losing control of his or her bicycle was no doubt likely to be appreciated at some level by all riders, both experienced and inexperienced. However, the real concern related to inexperienced young riders who might lack the maturity and understanding to appreciate adequately the risks involved. 301 Whether it was reasonable to make the ramp available for use by the public, including the class of young inexperienced riders, of whom the plaintiff was one, was a matter for normative judgment. This was a borderline case, which might readily have fallen on either side of the line. The trial judge held that failure to fence the ramp constituted a failure to take such reasonable care. A different view may have been legitimately open: see Neindorf v Junkovic 80 ALJR 341 at [9] (Gleeson CJ). Because this was not a jury case, the view of the trial judge was explained by reasons. Reasons are desirable in order to ensure that a transparent and principled approach has been adopted, that the legal principles applied have been correctly identified and that appropriate considerations have been taken into account. Nevertheless, the ultimate conclusion may not lend itself to precise analysis or detailed logical appraisal, as has been recognised in other areas of the law: see, in relation to questions of causation, Fitzgerald v Penn (1954) 91 CLR 268 at 277, applied by Mason CJ in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515; see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [40] (Gleeson CJ, Gummow and Heydon JJ) and Dinsdale v The Queen (2000) 202 CLR 321 at [9] (Gleeson CJ and Hayne J), applied in Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52]. 302 What is thus in issue in the present case is the correctness of a normative judgment, made by the trial judge, and about which opinions may differ. This does not involve a question of law: see Neindorf v Junkovic at [14]. However, it invites consideration of the correct approach for an appellate court in such circumstances.

Appellate review 303 The jurisdiction exercised by the Court is governed by s 75A of the Supreme Court Act 1970 (NSW). It is an appeal "by way of rehearing": s 75A(5). The Court has the power to draw inferences and make findings of fact: s 75A(6); in particular, sub-s (10) provides: (10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. 304 The Court conducting a rehearing does not literally rehear the evidence: it deals with the evidence on the papers, not by rehearing the witnesses and receives further evidence only on special grounds: s 75A(7) and (8). However, it is well-established that the Court is obliged to consider so much of the evidence as is necessary to deal with matters raised by the Appellant and must formulate its own view with respect to those matters: see, eg, State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at [64] (Gaudron, Gummow and Hayne JJ), [89]-[93] (Kirby J); [139] and [146] (Callinan J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at [16]-[17] (Kirby J). Putting to one side cases in which the trial judge has been required to resolve conflicting testimony as to primary facts, the established principle with respect to the drawing of inferences is that identified in Warren v Coombes (1979) 142 CLR 531, as expressed by Gibbs ACJ, Jacobs and Murphy JJ at 551: "Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it." 305 These principles have been consistently applied in the High Court: see, eg, Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] (Gleeson CJ and Gummow J). Although the majority in Warren v Coombes required the appellate court to "give respect and weight to" the conclusion of the trial judge, their Honours drew a distinction between that approach and the approach of Barwick CJ which they described in the following terms at p 548: "Barwick CJ has continued to call for judicial restraint on the part of members of courts of appeal, and to repeat that the decision of a trial judge should not be reversed simply because the appellate court holds a view of the facts different from that which the trial judge has taken, when that view is not unreasonable in the circumstances of the case … ."

However, before enunciating the principles set out at [304] above, their Honours quoted a passage from Aickin J in Livingstone v Halvorsen (1979) 53 ALJR 50 at 57, which was described as being nearer to the opinions of Barwick CJ than to those of other members of the Court with whom the majority in Warren v Coombes were agreeing. Nevertheless, their Honours quoted, without specific comment, the following passage in the judgment of Aickin J: "If on the facts as found by the trial judge two inferences were equally open, it would not be right for the Court of Appeal merely to substitute their own view of which inference should be drawn for that of the trial judge, though if one inference had a substantial preponderance of probability in its favour it may be justifiable to interfere with the trial judge if he took the view that the other inference should be drawn." 306 A difficulty with this language is that two inferences are not "equally open" in any abstract sense, but only in the view of a particular court. If an appellate court says that two inferences are equally open, it may mean that the plaintiff has failed to establish his or her case on the balance of probabilities. Alternatively, it may mean that the court has been unable to form the view that the trial judge was wrong in preferring one inference to the other. However, the important underlying principle is that the appellate court must review all the evidence before reaching a conclusion. It must also take into account the conclusion reached by the trial judge and the explanation for that conclusion identified in his or her reasons. 307 The difficult case may be the one in which two inferences are held to be "equally open" and there is no preponderance of probability, whether substantial or otherwise, favouring one view or the other. At trial, the plaintiff may fail unless he or she establishes a balance in favour of that view required for liability. However, on appeal, an unsuccessful defendant must satisfy the appellate court - see, eg, Walsh v Law Society (1999) 198 CLR 73 at [56] - that the inference drawn in favour of the plaintiff was the wrong inference, after the Court has given "respect and weight" to the conclusion of the trial judge. This last injunction could mean that it is necessary to take account of those factors in relation to which the trial judge may fairly enjoy an advantage, as identified by Kirby J in SRA v Earthline at [90]. These factors do not require any general deference, for that would reinstate the views of Barwick CJ, from which the joint judgment in Warren v Coombes expressly departed. But neither do they require the appeal Court to ignore real advantages enjoyed by the trial judge, including those which are not readily reduced to written explication. 308 Further, it is clear from the discussion of the facts in the joint judgment in Warren v Coombes that the statement of principle with respect to drawing inferences was treated as relevant to the ultimate question, namely whether the trial judge was wrong in holding that the defendant was negligent: at p 553. To similar effect, in Anikin v Sierra (2004) 79 ALJR 452, having noted at [28] that "[d]ifferent minds might respond in different ways to the evidence given at the trial", the joint judgment applied the principles established in SRA v Earthline noted above at [304] in order to test the conclusion of the majority in this Court that had overturned "the primary judge's conclusion on the issue of negligence": at [39]. Accordingly, the approach in Warren v Coombes should be applied to the question identified above, namely whether the exercise of reasonable care to a class of which the plaintiff was a member, required closing off access to the ramp, being the critical issue on the question of negligence in this case. 309 The trial judge in the present case had a particular benefit in deciding whether the failure to prevent access to the ramp demonstrated a lack of reasonable care, namely his Honour's view of the facility which, as Beazley JA explains, would have provided a significant benefit over the assessment of the photographs available to this Court: see at [77] above. Taking that benefit into account, and considering the evidence referred to by Beazley JA, to much of which the Court was taken in submissions, I am not persuaded that his Honour's conclusion in relation to this critical question with respect to liability was wrong.

Inadequacy of reasons as separate ground 310 As Beazley JA notes at [225] and [231] the Appellant complained of the inadequacy of the reasons given in respect of certain aspects of the judgment. The complaint seemed to accept that the trial judge adequately recorded the findings he in fact made, but not by reference to relevant evidence. The basis for this kind of challenge is, however, obscure. The Appellant sought to demonstrate error by taking this Court to the evidence. Given the nature of the proceedings in this Court, as discussed above, if the Appellant seeks to challenge a conclusion reached by the trial judge, this Court must review all of the material relevant to that conclusion to determine if error is established. If there is no reasoning to support the trial judge's conclusion, it may be that the conclusion itself should be given little or no weight. 311 As I sought to explain in 260 Oxford Street Pty Ltd v Premetis [2006] NSWCA 96 at [118]-[119] (Young CJ in Eq agreeing at [140]), in this State 'inadequacy of reasons' acquired its modern attraction as a ground of appeal in cases where the right of appeal was limited to error of law: see, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The complaint of inadequate reasons has expanded into the broader jurisdiction of an appeal by way of rehearing without full consideration of why such an expansion is necessary, or what are the proper consequences of establishing such an "error". Initially the expansion was cautious: thus, in Mifsud v Campbell (1991) 21 NSWLR 725 at 728B, Samuels JA stated: "It seems to me that this ground of appeal does not seek to establish that the learned judge's conclusion was necessarily wrong, or to seek to replace it by a finding that the plaintiff was entitled to judgment. It attacks the method by which the judge reached his conclusion. There is, I think, an analogy, which is of service in determining the present case, with those authorities which deal with the judicial obligation to give reasons."

His Honour then referred to Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 and Soulemezis at 278 and 281. His Honour continued: "Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. … Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance … . It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires." 312 In Mifsud, both Clarke JA and Hope AJA (at p 729) reserved their opinions on whether the error was one of law or not. 313 The second case frequently referred to in this context in this jurisdiction is that of Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. Beazley JA sets out a passage from the reasoning of Meagher JA in that case at [233] above. In that passage, his Honour was dealing with the content of the obligation, not its source, or its relevance in relation to an appeal by way of rehearing. However, to a significant degree, his Honour recognised that a failure to give adequate reasons for a decision may not need to be identified as a separate ground of appeal. Thus, in relation to the first element identified, namely the need for reasons to refer to relevant evidence, his Honour noted: "However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. … "

Similarly, in relation to the second element (setting out material findings of fact) his Honour noted that "where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial": see, in the context of judicial review of administrative decision-making, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [62]-[69] (McHugh, Gummow and Hayne JJ). 314 An appeal by way of rehearing is quite different from an appeal on a question of law. Indeed, even where it is necessary to establish an error of law for a particular purpose, that may be done in the absence of reasons by drawing inferences of the kind identified by Meagher JA: see Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J). There is no need, on an appeal by way of rehearing, for the appellant to establish an error of law; the appeal court must determine for itself whether particular evidence is relevant and whether a conflict in the evidence needs to be resolved. If the appeal court is satisfied of those matters, no finding having been made, error will have been established. If a finding was made, but no reasoning was provided in support, it may not be possible to discern error from a review of the evidence. It will follow that the correct finding could not be made by the appeal court. If the correctness of the finding is material to the outcome, the absence of adequate reasons may constitute error sufficient to require a retrial if the court is satisfied that "some substantial wrong or miscarriage has been thereby occasioned": Supreme Court Rules, Pt 51, r 23. In such a case lack of reasons may provide an appropriate ground of appeal. In most other circumstances nothing is achieved by adding an additional ground of inadequate reasons, said to flow from the fact that a failure to provide sufficient reasons "can and often does lead to a real sense of grievance": Beale, at p 442. 315 Although the reasoning of Meagher JA in Beale has been referred to on subsequent occasions in this Court, the majority judgment in Beale was that of Mason P, with whom Sheller JA agreed. Mason P approached the matter by a careful review of the evidence on the critical issues, noting at 440: "In those circumstances the appellant was in my view entitled to a finding indicative of some reason, be it demeanour or otherwise, why the trial judge did not take account of this evidence either generally or as part of the process of reasoning back to his highly adverse assessment of the appellant's credibility and her essential case."

After considering aspects of the medical evidence, his Honour continued: "However, the critical problem with the judgment is the acceptance of Dr Millar's unchallenged evidence as destructive of the appellant's case, when it did just the reverse." 316 Beazley JA also sets out at [234] the comments by Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [129] that: "When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged."

His Honour noted that such language might involve a challenge based on a failure to exercise the relevant jurisdiction of the court, or might merely form the basis of an inference that there had been error because that is what should be inferred from an absence of an expected explanation: at [130]. As this Court explained in Gordon v Ross [2006] NSWCA 157 at [81]: "As is frequently the case in relation to an appeal by way of re-hearing, a complaint of lack of adequate reasons tends to obscure the real ground of complaint. Thus, if the real complaint is that no finding has been made, the question of reasons is irrelevant. There is no obligation to give reasons for a finding which has not been made. The gravamen of that complaint, whether right or wrong, must be that no finding has been made in circumstances where there was an obligation to address the issue. On the other hand, if a finding has been made, but is not supported by the evidence, there is little substantial benefit to an appellant to complain of inadequate reasons: on a re-hearing, it would generally be necessary for the Court hearing the appeal to consider the evidence and determine for itself whether it was adequate to support the finding made." 317 I agree with the conclusions reached by Beazley JA at [236]-[247], but would also reject the Appellant's reliance upon a separate ground of inadequate reasons as unnecessary and inappropriate. Otherwise, and for the reasons given by Beazley JA, I am not persuaded the trial judge was wrong in respect of the other findings challenged by the Appellants. **********

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