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[2000] NSWSC 1093
Supreme Court of NSW
2000-12-22
Barr J
Original judgment source is linked above.
CITATION : TAYLOR v CANTERBURY MUNICIPAL COUNCIL & ORS [2000] NSWSC 1093 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20387/98 HEARING DATE(S) : 08/11/99, 09/11/99, 10/11/99, 11/11/99, 12/11/99, 15/11/99, 16/11/99, 17/11/99, 18/11/99, 19/11/99, 19/06/00, 20/06/00, 21/06/00, 22/06/00, 26/06/00, 27/06/00 JUDGMENT DATE : 22 December 2000
William Roy Taylor - Plaintiff Canterbury Municipal Council - 1st Defendant PARTIES : Christopher John Keogh - 2nd Defendant New South Wales Touch Association - 3rd Defendant Karen Benedet as Executrix of the Estate of Franco Benedet - 4th Defendant Glen Trudgett - Cross-Defendant JUDGMENT OF : Barr J at 1
GB Hall QC / F Chan - Plaintiff G Little - 1st Defendant COUNSEL : D Fagan SC - 2nd and 3rd Defendants R Tonner - 4th Defendant S Finnane - Cross-Defendant Makinson & d'Apice - Plaintiff Moray & Agnew - 1st Defendant SOLICITORS : Phillips Fox - 2nd and 3rd Defendants Bartier Perry - 4th Defendant Shaw McDonald - Cross-Defendant CATCHWORDS : Negligence - responsibility of Council for management of velodrome Bunyan v Jordan (1936-1937) 57 CLR 1 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Car and General Insurance Corporation Limited v Seymour [1956] 2 DLR 369 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 Jaensch v Coffey (1983-1984) 155 CLR 549 CASES CITED : Havenaar v Havenaar [1982] 1 NSWLR 626 Morgan v Tame [2000] NSWCA 121 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Pyrenees Shire Council v Day (1998) 192 CLR 330 Newcastle Entertainment Security Pty Limited v Simpson [1999] NSWCA 351 Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 Wilson v Darling Island Stevedoring Co (1955) 95 CLR 43 DECISION : See paras 88, 95, 100, 105, 241, 242 and 243
THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
20387/98 - WILLIAM ROY TAYLOR v CANTERBURY MUNICIPAL COUNCIL & ORS
JUDGMENT 1 HIS HONOUR: The first defendant, Canterbury Municipal Council (the Council) owned a park called Tempe Velodrome consisting of a banked, concrete cycle track surrounding a level, grassed pitch marked out for touch football. There was a metal fence at the top of the bank on the outer edge of the cycle track but no fence or obstruction of any kind where the track adjoined the football pitch. On the western side of the track was a grandstand. It was possible to walk from behind the grandstand to the football pitch through a tunnel specially constructed for the purpose. It was also possible to walk from the grandstand to the football pitch by passing through a gate in the fence in front of the grandstand and crossing the track. 2 The council let to the third defendant, New South Wales Touch Association (the Touch Association) portion of the grandstand, which it used as offices. The Touch Association administered the sport of touch football in New South Wales as part of a national scheme. Individual touch football clubs within New South Wales were affiliated with it and paid fees. One such club was Canterbury Bankstown Touch Football Association, whose teams sometimes played at the Velodrome. The second defendant, Christopher John Keogh, was secretary of Canterbury Bankstown Touch Football Association. 3 There was a Sunday touch football competition and the 1990 season began on 29 April 1990. On the second Sunday of the season, 6 May 1990, one of the Canterbury Bankstown teams had a fixture to play a team from South Hurstville. During the first half of the match a group of cyclists, one of whom was the plaintiff, began to use the cycle track to perform what was called a "warm-up", consisting of twenty laps during which the speed was steadily increased. Riders kept a tight formation in single file and the lead changed once on each lap. The riders were within two or three laps of the end of the warm-up when the first half of the football game ended and the players began to disperse. One of the members of the South Hurstville team, Mr Franco Benedet, stepped onto the track in front of the approaching cyclists. The lead rider, Mr Glen Trudgett, and the rider immediately behind him managed to avoid Mr Benedet, but the plaintiff, who was third in line, collided with him. Mr Benedet was knocked to the concrete surface and sustained head injuries from which he died on the following day. Mrs Karen Benedet, the legal personal representative of the estate of the late Mr Benedet, is the fourth defendant. 4 The plaintiff was thrown to the ground in the collision and sues for damages for the injuries he sustained and for the disabilities and loss which he says resulted. He says that each defendant breached in various ways a duty of care owed to him. 5 As well as denying any such breach of duty, each defendant has pleaded that any loss suffered by the plaintiff resulted from his own negligence. Each defendant also denies liability because, it is said, the plaintiff voluntarily assumed the risks associated with the activity he engaged in. 6 There are several cross-claims seeking contribution or indemnity: the Council has joined the remaining defendants; Mr Keogh and the Touch Association have joined the Council and Mrs Benedet and Mrs Benedet has joined all other defendants. In addition, all defendants except the Council have joined Mr Trudgett as a cross-defendant. 7 The issues raised make it necessary to inquire who was responsible on 6 May 1990 to determine who might enter and use the velodrome and on what conditions. 8 The velodrome was planned and designed in the late 1970s and built on land owned by the Council. It was opened in 1982. There are two cycling seasons in New South Wales, namely a track season which runs from December until about the end March and a road season, which occupies the winter months. It was no doubt in the expectation that the velodrome would not be used by cyclists during the winter months that the planners wanted it to have another use at that time, and that explains why the inner playing field was incorporated in the design. 9 Mr Garry Jenkins, a civil engineer employed by the Council, took part in the design and construction, representing the Council in collaboration with the project manager. 10 A management committee was formed, comprising representatives of the Council and sporting bodies. A written constitution was adopted. Mr Jenkins was secretary of the committee for a number of years after its inauguration. Following its amendment in 1984 the Constitution was as follows - 1. NAME - The name of the facility shall be - "CANTERBURY VELODROME" 2. MANAGEMENT COMMITTEE - 2.1. The control and management of the Velodrome shall be vested in a Committee appointed by the Canterbury Municipal Council with delegated authority under Section 530 A of the Local Government Act, 1919 (as amended) - 2.2. The Committee shall consist of the following members - Two (2) Aldermen from Canterbury Municipal Council. One (1) Officer of Canterbury Municipal Council, nominated by the Town Clerk, together with one (1) substitute on the occasion of the nominee being unable to attend meetings. One (1) person nominated by the N.S.W. Cyclists Union. One (1) person nominated by the N.S.W. Touch Association. One (1) person nominated by the Bankstown Sports Amateur Cycling Club. 2.3. The Officers of the Committee shall consist of a Chairman (who shall be appointed by the Canterbury Municipal Council for a period of twelve (12) months with all Committee Members retiring annually on the anniversary of the Council last elected or at the completion of the term of each Council - whichever is appropriate. 2.4. The Committee may be dissolved by the Council at any time. 2.5. Extraordinary vacancies on the Committee shall be filled by Council after considering recommendations by the Committee. 2.6. Members of the Management Committee shall cease to hold office - i. If the Committee is dissolved by Council. ii. By resignation in writing lodged with the Secretary. iii. If absent without leave from four (4) consecutive meetings. iv. If he holds any office of profit under or in the gift of the Velodrome. v. If he is directly or indirectly interested in any contract individually or proposed contract with the Velodrome for the supply of goods, services or labour.
The case against the Council 57 The plaintiff has particularised his case against the Council in a number of ways, but essentially it is that the Council failed to prevent dual use of the velodrome and the risk of danger to users, including the plaintiff, that thereby arose. The direct result of its failure to control use of the stadium was the obvious risk that a cyclist using the track might be injured as a result of an incident of the simultaneous conduct of a touch football match on a pitch close to the track. 58 The risk of injury arising out of the dual use of the stadium was obvious and foreseeable. The Council did not submit otherwise. Instead, Mr Little, for the Council, submitted first that any duty of the Council towards persons using the velodrome was a delegable one. He referred to Newcastle Entertainment Security Pty Limited v Simpson [1999] NSWCA 351 and Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520. I think that the submission was well made and that the risk of injury arising from the simultaneous dual use of the velodrome was not one of those in respect of which it could be said that the Council's duty to take reasonable care should be replaced by a duty to ensure that reasonable care was taken. 59 Mr Little went on to submit that in order to succeed the plaintiff had to establish that the Council was vicariously liable for the failure of Mr Keogh either to terminate the touch football games or to advise the Council that uninvited cyclists were insisting on using the track whilst touch football games were being played. Alternatively, but more faintly, it was submitted that the Council had delegated its duty to the management committee. 60 I do not accept these submissions. I do not think that the Council, by permitting Mr Keogh and his organisation to occupy the inner field on 29 April and 6 May, became thereby entitled to have him discharge its duty of care to ensure that dual simultaneous use did not take place. There was no formal or informal arrangement by which that should happen and I do not think that the circumstances imply or require that any such thing should have happened. No doubt Mr Keogh, in remonstrating with the cyclists on 29 April, did what he could to remove a danger which was obvious to him, but his duty was to himself and to the organisation he represented. 61 Quite apart from that, Mr Keogh must have left the velodrome itself before 8 o'clock so as to referee a match on one of the Waterworth Park pitches. I accept that he never saw cyclists there on that day. They arrived later on, probably not before 8.30am. The collision took place, of course, after the half-way point of the 9 o'clock match. 62 For reasons which I have already explained, I am satisfied that there was no delegation by the Council to the management committee of its duty to act reasonably towards users of the velodrome, especially where they encountered the danger of injury because of simultaneous dual use. The committee had no authority to manage events, for example, by erecting signs and barriers and directing the movement of people. It had no authority to commit the Council to spending money on measures of control. 63 Mr Little's next submission was that the Council was not aware of the dual use of the velodrome. I do not accept that submission, though it would have been a complete answer to it to observe that the Council ought to have been aware. It seems clear to me that the Council became aware early in 1990, following the conversation between Mr Keogh and Mr Smail, that the Canterbury Bankstown Touch Association would be holding its matches at Tempe, including on the inner field, from the commencement of the forthcoming season. 64 Although Council must also have known that the cycle track season would have ended by that time, it was also aware that there was frequent unauthorised use of the cycle track. Mr Jenkins knew that cyclists often used the track and that on any given day it was highly probably that one or more cyclists would be using the ground for training. He was aware of the danger of dual use. The Council had a policy against it. He went on to say, however, that the track was generally locked at weekends and used only by persons who had booked. 65 In fact there was no requirement for cyclists to book casual use of the cycle track out of season and it was not until 11 October 1990 that the Council resolved to restrict access to the track to riders registered with the Australian Cycling Federation and to charge a fee for use. 66 In my opinion the Council must have realised that, though it might permit only one use of the stadium at a time, there was a constant risk of dual use in practice by the entry by unauthorised persons. The Council knew that whenever the gate was open, such a thing could happen and was likely to happen. I think that the Council did know of the risk. 67 Then it was submitted that the only liability of the Council was towards persons who were not able to take care of themselves, people with particular vulnerability to injury. Reliance was placed upon the judgment of McHugh J in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 and to problems of management by local councils of public space such as beaches, where more than one activity might take place simultaneously, giving rise to the risk of injury to some participants who were unable to protect themselves in all the circumstances. 68 Any view the law might take about the liability of a public authority whose duty is to manage such a public space will not in my opinion determine the liability of the Council in the present case. I think that the guiding principle is as was stated by Mason J in Sutherland Shire Council v Heyman (1984-1985) 157 CLR 424 at 459-461. Having discussed breach by a public authority of a statutory duty, his Honour continued - Generally speaking, a public authority which is under no statutory obligation to exercise a power comes under no common law duty of care to do so: see Revesz v. The Commonwealth (1951) 51 S.R. (N.S.W.) 63 . But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning: see, e.g. Barnes v. Irwell Valley Water Board [1939] 1 K.B. 21 ; Knight v. Sheffield Corporation[1942] 2 All E.R. 411 ; Fisher v. Ruislip-Northwood Urban District Council [1945] K.B. 584 ; Bird v. Pearce; Ex parte Somerset County Council (1979) 77 L.G.R. 753 . … There are other situations in which an authority's occupation of premises ( Voli (19630 110 C.L.R. 74 ) or its ownership or control of a structure in a highway or of a public place ( Buckle v. Bayswater Road Board (1936) 57 C.L.R. 259, at pp. 286-287 ; Aiken v. Kingborough Corporation (1939) 62 C.L.R. 179 ) attracts to it a duty of care. In these cases the statute facilitates the existence of a common law duty of care. … And then there are situations in which a public authority, not otherwise under a relevant duty, may place itself in such a position that others rely on it to take care for their safety so that the authority comes under a duty of care calling for positive action. Such a relationship has been held to arise where a person, by practice or past conduct upon which other persons come to rely, creates a self-imposed duty to take positive action to protect the safety or interests of another or at least to warn him that he or his interests are at risk: Mercer v. South Eastern & Chatham Railway Companies' Managing Committee [1922] 2 K.B. 549 ; Morash v. Lockhart & Ritchie Ltd. (1978) 95 D.L.R. (3d) 647 ; cf. Pennant Hills Restaurants Pty. Ltd. v. Barrell Insurances Pty. Ltd. (1981) 145 C.L.R. 625. 69 The Council was conducting a sporting facility which in many ways was not unlike a commercial business carried out for the same purpose. Its purpose, apart from promoting the sports which might be carried on there, was to derive income from the facility. It encouraged members of the public to use it. It knew or ought to have known that if it failed to control the use of the velodrome and thereby allow cycling and touch football to proceed simultaneously there would be a risk of harm to those engaged in those sports. In my opinion the Council had a duty to prevent that harm. Parramatta City Council v Lutz (1988) 12 NSWLR 293; Pyrenees Shire Council v Day (1998) 192 CLR 330. 70 Then it was submitted that the Council could in any event have done nothing to prevent dual use, given the attitude of the cyclists as displayed by Mr Stoker during his conversation with Mr Keogh on 29 April. It was submitted that they would have done what they wanted to do, come what may. 71 I do not accept this submission. There were a number of simple and inexpensive measures which the Council could have taken to prevent dual use. Signs could have been erected. Barriers could have been placed across the cycle track. Rangers or other employees could have attended. It was submitted on behalf of the Council that it occupied one hundred or so sports grounds of which this was only one and that the cost of having a person on duty would have been so great as to make it impracticable to do so. That submission, I think, overlooked the fact that this was a special facility, the dual use of which gave rise to a peculiar danger which was unlikely to exist at an ordinary sports field. I think that special measures were justified in the circumstances. 72 Only a few days after the events the Council erected substantial fencing, which allowed visitors to enter the Touch Association's premises in the grandstand but which cut off access to the cycle track. 73 In my opinion the Council failed to control the use of the stadium by any of these measures and thereby fell into breach of its duty towards persons such as the plaintiff who might use the velodrome during times of dual simultaneous use. 74 It was submitted on behalf of the defendants that no duty of care was owed to the plaintiff insofar as the injuries he suffered were psychiatric, because a person of normal fortitude would not have suffered psychiatric injury in the circumstances that befell the plaintiff. Reference was made to Jaensch v Coffey (1983-1984) 155 CLR 549 and Morgan v Tame [2000] NSWCA 121. See also Bunyan v Jordan (1936-1937) 57 CLR 1. 75 I think that any person of normal fortitude occupying the plaintiff's position, seeing Mr Benedet in terminal distress and realising that his imminent death, and later his death, were caused by the collision would probably have suffered psychiatric injury. In the circumstances the plaintiff's peculiar susceptibility to psychiatric injury does not prevent his recovering damages. Havenaar v Havenaar [1982] 1 NSWLR 626; Morgan v Tame. 76 The tunnel under the cycle track was approached from outside the track by a ramp which led from a path near the western side of the rear of the grandstand. A ramp at the inner end of the tunnel led up to the western side of the velodrome, inside the cycle track not far from the western edge and not far from the marked touch football pitch. 77 The plaintiff pleaded several particulars of negligence, the substance of which was the Council's failure to stop Mr Benedet crossing the cycle track and make him use the tunnel in order to get from the inner field to the grandstand. All those particulars assume that Mr Benedet was crossing the track in order to get to the grandstand when he was struck. I have explained why I am not satisfied that that is what Mr Benedet was doing. The Council's negligence has not been made out in the manner particularised.
The plaintiff's voluntary assumption of risk and negligence 78 Mr Little submitted that the plaintiff voluntarily assumed the risks inherent in carrying on his pursuit of cycling and, alternatively, that he himself was negligent. It is convenient to deal with these matters together. 79 The plaintiff was born on 24 March 1973 and was seventeen years old at the time of the collision. Mr Taylor is a cycling enthusiast and was for many years a competitive cyclist in club and State titles. Eventually he was appointed a State commissaire, a title given to those who are placed in charge of race meetings. The plaintiff was thus introduced to cycling at an early age and began to enter children's races in 1978, when he was five years of age. Exhibit L is a list of medals and trophies awarded by the New South Wales Cycling Federation and junior cycling institutions. It shows that the plaintiff had a good deal of ability as a child and as a junior amateur cyclist. Between 1984 and 1989 he was awarded eight gold medals, six silver medals and five bronze medals by the New South Wales Cycling Federation in sub-juvenile and juvenile road and track events. In 1985, when a sub-juvenile, he was named cyclist of the year. His ambition was to become a professional cyclist and to compete in the Olympic Games. 80 By 1990 the plaintiff was well experienced in road and track riding. As would be expected of a person with such experience, he had had a number of accidents and falls and had injured himself on a number of occasions. Some of the accidents involved collisions with other cycles. At least one involved a collision with a road vehicle and at least one involved a fall when the plaintiff negotiating a road bend in wet weather. He was well aware of the techniques used in team racing and of the need to concentrate hard on the rear of the cycle in front because of the small separation between cycles. He used to devote his whole attention to that aspect of the race. 81 The plaintiff said in evidence that he commenced cycling at between 8 and 8.30am, but he had told the police in a statement not long after the event that he began at about 9.30am. I think it probable, because of the evidence of Mr Judge and Mr Ryan, that following a warm up of a few minutes, the cyclists began to ride seriously and competitively at about 9.25am, about ten minutes before the close of the first half of the touch football match. The plaintiff told police in his statement that he saw that there was a touch football game being played on the centre field. In his evidence he said that that was less accurate than what he then said, namely that although he was aware that there were footballers on the field, he did not know whether they were playing a game. He said that his statement had meant to convey that he assumed that there was a game going on. 82 Given that the game was an official club fixture, that the players were wearing bright yellow and green uniforms, that the referee used a whistle to control play and that the end of the first half was timed by reference to a loud siren, I think that it must have been obvious to the plaintiff that touch footballers were seriously engaged in a match on the inner field. Moreover, he had been present on the Sunday before and had seen touch footballers playing on that occasion as well. He knew that he was there unofficially without the knowledge or approval of his cycling body. 83 Mr Taylor said in evidence that it had never been suggested to him that permission was needed to use the cycle track and that he had never seen documents that led him to believe that formal permission was needed. This evidence implied that Mr Taylor believed that the cyclists had the right to use the velodrome. I do not accept that that was his belief. He had been attending the velodrome for some years to observe or take part in training and competitive events. He knew that there was a track cycling season and must have known that there was a touch football season. He must also have known that when one began the other ended. 84 I think that it was obvious to the plaintiff that the cycling track season was over and the touch football season had begun. Any use of the track was therefore likely to give rise to quite different consequences because of the proximity of footballers who were likely to be giving their undivided attention to their sport in close proximity to the riders. 85 The plaintiff rode a number of laps solo before forming up with the other riders and for that reason alone had plenty of opportunity to observe what was happening on the inner field. I am satisfied that the touch football match was then in progress. He was asked about this and said that he would not have looked. He was well aware of the speeds he and his colleagues were likely to reach during the warm up, of the close proximity of his cycle to the next and of the limited opportunity he would have to observe events around him once the warm up started and the speed approached its maximum. If he had bothered to think about it, he would have realised what an extraordinarily pursuit he was undertaking given the proximity of the touch footballers. 86 I am satisfied that when Mr Benedet stepped onto the track Mr Trudget was the lead rider. I am satisfied that as soon as he saw Mr Benedet on the track he called out a warning and moved his cycle up the track in the appropriate manner. That warning was heard and heeded by the second cyclist in line. The fact that the plaintiff's cycle collided with Mr Benedet does not of itself suggest to me that the plaintiff failed to do anything that he might reasonably have done and I think that it was probably impossible for him to avoid the collision. I do not think that his riding at that time was any more unreasonable than at any other part of the warm up. His negligence, for that is what it was, consisted in his undertaking the dangerous pursuit in the circumstances I have described. 87 It was submitted on his behalf that at seventeen years of age he should be regarded as a boy among men, taking his lead from his more experienced colleagues and that a finding a negligence on his part should therefore be less readily reached. I do not accept this submission. Notwithstanding his age, the plaintiff was highly experienced and was able easily to appreciate the dangers of participating in the warm up. He denied a suggestion that he was trying to impress his elite colleagues and I do not think that he was overborne by them. 88 I think that as between the plaintiff and the Council, the responsibility for the collision and its consequences is equal. 89 I do not think, however, that in the circumstances the plaintiff can be said by participating in the warm up voluntarily to have assumed the risk of injury. What the Council must show to establish such a defence is that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it. The issue is not whether the plaintiff voluntarily and rashly exposed himself to the risk of injury, but whether he agreed that if injury befell him the loss should be on him and not on the defendant. Car and General Insurance Corporation Limited v Seymour [1956] 2 DLR 369 at 371-372; Wilson v Darling Island Stevedoring Co (1955) 95 CLR 43 at 82.
The case against Mr Keogh 90 The plaintiff particularises his claim against Mr Keogh in number of ways, and they may be broadly summarised thus: using the inner field without authority, holding a football match whilst cyclists were using the track, failing to control the footballers or the cyclists, failing to warn the plaintiff of the presence of Mr Benedet or stopping him from crossing, failing to obtain exclusive use of the velodrome, failing to abandon the football game when the cyclists began using the track and failing to erect signs, fencing, barricades or other means to stop people going onto the track and failing to advise users of the playing field not to cross the track and only to use the tunnel. 91 I am satisfied for the reasons I have explained that Mr Keogh booked the exclusive use of the inner field early in 1990 for the sole purpose of holding a touch football match and was entitled to expect that the teams rostered to play there would be able to do so without encountering the danger of cyclists using the cycle track. I am satisfied that when the Council subsequently issued written authority for that use on 29 April and 6 May it was doing no more than supplying written confirmation of permission already granted. Although Mr Keogh may well have had duties to control the footballers in the ordinary way in their use of the booked facilities, such duties would not extend to the plaintiff and his companions, who had no right to be present doing what they were doing. In warning off the cyclists on 29 April Mr Keogh was doing something that I think he was entitled to do, but that did not fix him with knowledge that the cyclists would be returning on the following Sunday or with any obligation to remain within the velodrome, rather than go about his duties in Waterworth Park, to guard against the possibility that they might return, contrary to the stern warning he had given. 92 I am satisfied that Mr Keogh left the inner field and went to referee a match in Waterworth Park no later than 8am and that he did not return to the inner field after that until he had been told about the collision. Thus he did not see the cyclists on 6 May and had no reason to believe that they were present. 93 The plaintiff's case against Mr Keogh really assumes that he knew or ought to have known about the presence of the cyclists and ought to have exercised some control over the whole of the stadium, including the cycle track. Mr Keogh's permission was restricted to the use of the inner field and such other use of the premises as was incidental thereto, but gave him no right to exercise general dominion over the cycle track. 94 I am satisfied that there was no negligence on the part of Mr Keogh in assigning a football match to the inner field. There was no negligence in his not remaining and watching over the game. He could not be said to be negligent in failing to call off the football match when the cyclists insisted on using the track, for he did not know of their presence. As I have already concluded, the failure to require or warn Mr Benedet or others to use the tunnel and the failure to prevent persons including Mr Benedet from crossing the track, if failure it was, has no causal connection with any injury suffered by the plaintiff, since Mr Benedet was not attempting to cross the track. 95 In the circumstances the plaintiff's claim against the second defendant fails.
The case against the Touch Association 96 The plaintiff particularises his claim against the Touch Association in much the same way as I have summarised against Mr Keogh. In addition it is pleaded that the Touch Association wrongfully gave access keys to Mr Keogh and allowed him to use the inner field. 97 The case against the Touch Association is based upon a number of misconceptions. The Touch Association occupied only the portion of the grandstand let to it by the Council and had the right to occupy only that portion of the premises and such other portions as were necessary for it to gain access to it. It had no right to occupy the inner field or the cycle track or control any activity that went on in those parts of the stadium. It had no responsibility for holding football matches and played no part in organising the matches with which Mr Keogh was concerned. The Touch Association was not carrying on any activity at the velodrome on 6 May 1990, and could not therefore be fixed with any obligation to control events there. 98 Notwithstanding the submissions of the plaintiff and the Council, I am not satisfied that the Council delegated to the Touch Association any responsibility to manage the use of the stadium on 6 May 1990. 99 There was no evidence that the Touch Association provided Mr Keogh with a key to the premises. 100 The plaintiff's claim against the Touch Association fails.
The case against Mrs Benedet 101 The plaintiff particularises his claim against the estate of Mr Benedet in the following manner -
(b) failing to warn the plaintiff of his existence on the bicycle track;
(c) failing to keep off the cycling track while it was being used by bicycle riders at speed;
(d) failing to proceed from the centre field of the velodrome to the grandstand via the tunnel provided; and
(e) failing to keep out of the way of the cyclists including the plaintiff. 102 Particular (d) fails because Mr Benedet was not crossing the track. The question arises, however, whether his estate should be held responsible for the consequences of what he did in all the circumstances. 103 Mr Benedet must have been on the inner field for at least half an hour before the collision. He had spent some parts of that period time playing football and others waiting as a substitute on the sideline and watching the play. During such time his attention would have been wholly or principally engaged on the play. After the first half of the match came to an end, he was engaged in conversation with at least one other player. Even so, he probably realised the presence of the cyclists on the track. They had been engaged in their warm up for about ten minutes - they were probably on about the twentieth lap and were lapping once every twenty-five seconds or so. The cyclists were going very fast, however, and gave no warning of their approach. Their cycles made no more noise than was made by the air they displaced. It is impossible to find how much time elapsed between Mr Benedet's standing beside the track, moving onto it and then being hit, but it must have been very short. Whilst he was undoubtedly careless and inattentive, therefore, it is proper I think to regard his carelessness and inattentiveness as momentary. Immediately before he moved onto the track he appears to have been either standing facing away from the track or walking slowly backwards towards it. I think that he was not intent on moving in any particular direction or for any particular purpose and that he did not realise how close he was to the cycle track. 104 Having regard to the proximity in which events outside his control had placed him to the track and the speed with which the collision took place, one incident of which was the impracticality of Mr Trudget's warning and the impossibility of Mr Benedet's avoiding the collision, I think that he ought not to be held responsible for the collision or its consequences. 105 The plaintiff's claim against his estate also fails.
Damages 106 The plaintiff claims to have been very badly affected by the collision. He puts his case this way. He fell onto the track and came to rest on the grass. He lost consciousness for a few minutes. When he came to he found himself lying near Mr Benedet, who was unconscious, bleeding profusely and having difficulty breathing. The plaintiff suffered some injuries. He grazed an arm and had a sore knee and hip and a bad headache. His neck and back were sore. He got up and walked to the top of the track. Mr Taylor, who had returned in the meantime to the velodrome, took him home. His headache had gone the next day. Within a day or so he attended the Cumberland Institute of Sport for physiotherapy and after a few weeks recovered from his physical injuries. However, he was having difficulty sleeping, a thing that had not previously troubled him, and always felt tired. He was having nightmares and shaking all the time. He had a bad dream every night or almost every night in which the subjects were violent and bloody. The frequency of those nightmares did not decline between June 1990 and November 1999, when he gave his evidence. 107 He became terribly depressed at the thought of Mr Benedet's death and suffered frequent panic attacks. It was scarcely possible to communicate with him because he cried whenever he was spoken to. He was given counselling, which had been arranged by officials at the Coroner's Court. He would not talk about the incident to anyone, even Mr Taylor. 108 Between two weeks and one month after the collision he went to the railway station and put his head on the tracks. He was frightened by a train coming in the opposite direction and abandoned the attempt at suicide. 109 He found himself unable to remain in any place where there were a lot of people and consequently saw less of his friends. He became more irritable and on occasions punched the wall or the window. On one occasion he punched Mr Taylor. 110 Although the plaintiff had substantial academic potential, he was underachieving in high school before the collision because of his love for cycling and the time he was devoting to it. After the collision his capacity to concentrate on homework was almost negligible. His parents tried in vain in get him to study. He completed the higher school certificate in 1990 and gained a Tertiary Entrance Rank of 41.3. But for the collision he would have done significantly better. 111 He enrolled at Charles Sturt University, Wagga Wagga, in a course which would have led to an associate diploma of applied science in viticulture. He arrived there in February and stayed with cycling friends of Mr Taylor's in Wagga Wagga. He was drinking to excess because of the effects of the collision upon him: the nightmares and thoughts of death, blood and violence and the increased incidence of panic attacks. He used marijuana. He satisfactorily completed one subject but failed the others. He left in March. In September he applied to withdraw from another subject on the ground of what was called serious misadventure, saying that he had suffered from an asthma attack. He began studying at home but fell behind because the panic attacks were continuing and he was still drinking to excess. His application to withdraw from the subject was refused and he was registered as having failed. In the same month Mr Taylor persuaded him to withdraw from the course sent him to work on a property he had purchased in the Hunter Valley on which he intended to grow wine grapes. In October the applicant applied to withdraw from his studies at the university, stating that if he continued in the course he might lose his job. 112 The university excluded him as a student and he appealed. In February 1992 he was told that his appeal had been upheld and he was re-enrolled on probation. He attended the university for one or two weeks in July 1992. 113 At about the same time he was accepted into a traineeship in viticulture and entered a course at Kurri Kurri TAFE. He withdrew from his course at Charles Sturt University for that purpose and finished the TAFE course in May 1993. He completed a period of on-job training and obtained a certificate under the Industrial and Commercial Training Act to the effect that he had reached the required standard in Rural Operations. 114 The plaintiff remained living and ostensibly working on his father's property but continued to be unable to cope. He continued to drink heavily. He was afraid to sleep because of nightmares. He stayed up late, and became tired and unable to work. 115 He joined the local bushfire brigade. During 1993 there was an occasion when he was called out to attend an emergency and he came upon the scene of a murder. He was so upset that he drank heavily and attempted suicide by shooting. During 1994 or 1995 his father took a shotgun from him when he threatened to harm himself. 116 During 1994 Mr Taylor was experiencing financial difficulties and asked him to return to Sydney. He did so and took a job at St Vincent's Hospital. However, he left the job after six months for fear of having to attend the mortuary. 117 The plaintiff attempted to ride a bicycle again after the collision but found that he was shaky and very uncomfortable. Mr Taylor and another cycling colleague persuaded Mr Lionel Cox, a former Olympic cyclist who had coached the plaintiff in 1989, to devise routines and exercises for him. However, although he tried for about six to eight months, he was never able to reach the standard he had previously held. He has not ridden competitively since the collision and any aim he had of being a professional cyclist has now been abandoned. 118 The plaintiff's most recent job was on the sales staff of a retail rural business. He lasted there only a couple of weeks and left because he suffered a panic attack. 119 His case is that he is unemployable and that but for the collision he would have earned wages appropriate to a viticulturist. 120 It is the plaintiff's case that he is affected by three independent conditions. The first is that he is prone to suffer from panic attacks. The second is that he is epileptic and that his seizures have been made worse by the collision. The third is that he has a post traumatic stress disorder, or an adjustment order with depressed and anxious mood. 121 The plaintiff maintained a distinction in his evidence between epileptic activity and panic attacks. He said that since the collision he had suffered panic attacks at an average rate of two per week, compared to a handful per year before the collision. Before the collision he did not suffer nightmares. After the collision he had a nightmare every night. 122 In order to understand what effect if any the collision has had upon the plaintiff it is necessary to enquire into his pre-accident history and to gain some idea of what his course of development might have entailed but for the collision. That will require consideration of his state of health at the time of the collision. 123 The plaintiff suffered a number of symptoms during childhood which attracted medical intervention. He began suffering asthma before he was four years old. He is reported to have been shy, and as having had temper tantrums. He feared going to sleep. He was said to suffer from attention deficit syndrome and was prescribed a diet which excluded preservatives, flavours and colourings. He did not fare badly at school, however, and was only occasionally reported for misbehaviour. During 1981, when he was eight and a half years old, psychological tests were carried out, showing that his IQ was in the high average to above average range. It does not appear why it was necessary for those tests to be done. 124 There were tensions in the family in which he grew up. Mr and Mrs Taylor were both practising psychologists. Both did professional work at the college which the plaintiff attended upon his entry into high school. The plaintiff's maternal grandmother was by all accounts a difficult person and called him evil. His mother called him naughty and uncontrollable. His parents had serious disagreements which manifested themselves in the presence of the plaintiff and his sisters and which eventually resulted in the marriage coming to an end in an unpleasant way in the early 1990s. His mother attempted or threatened to commit suicide on a number of occasions in the presence of members of the family, including the plaintiff. The plaintiff believed at the time that his mother was serious. She accused Mr Taylor of having had an affair with a patient. Mr Taylor later told the plaintiff that the marriage had been over for sixteen years and that his mother had had an affair with a Christian brother at the plaintiff's college. These events must, I think, have had a significant effect on a young man who had already manifested fragility of temperament and health sufficient to justify his being referred to a number of medical practitioners. 125 During his study, training and the practice of his profession, Mr Taylor had come to know a number of medical and other practitioners specialising in various disciplines. He was understandably very concerned about the health of the plaintiff and I think that it must have been he who saw to it that the plaintiff was seen professionally by a substantial number of such practitioners over the years. Among others, the plaintiff was referred to a series of neurologists and psychiatrists. 126 When he was ten or eleven years old the plaintiff began to experience what came to be called panic attacks. They do not seem to have been precipitated by any particular event. His hands would begin to shake and his heart rate would increase. He would hyperventilate. There was no loss of consciousness. 127 During 1985 the plaintiff entered Year 7 in high school. During the school holidays, when he was twelve years old, he suffered a nasty collision. He lost control of his bicycle at sixty kilometres per hour and ran into a rock face. 128 The plaintiff's shaking, hyperventilating attacks continued. An electroencephalogram carried out during 1985 showed epileptic activity, though Dr Corbett, neurologist, thought that the plaintiff's symptoms were likely to prove to be due to a combination of anxiety attacks and hyperventilation. At least part of the reason for Dr Corbett's opinion appears to have been that the plaintiff was able to continue cycling during these attacks. 129 On 17 February 1986 the plaintiff had what was described as an episode and was late for school. A week later another EEG was carried out and there was, according to Dr Corbett, no suggestion of epilepsy. By the following month the hyperventilation attacks had ceased. 130 In January or February 1987 the plaintiff experienced shaking prior to the commencement of a championship race at the velodrome. He recovered and took part in the race. 131 In March 1987 Dr Surgeon, the plaintiff's general practitioner, referred him to Dr Hansen, psychiatrist, who remarked on the plaintiff's mother's phobic anxiety with panic and observed that that might be a familial disorder. He mentioned that the plaintiff had a mild degree of dyslexia and that that "as well as a few difficulties" had set him back at school. He thought the plaintiff ambitious in the work he was undertaking and noted that a recent cycling accident of Mr Taylor's seemed to have triggered an exacerbation of the plaintiff's panic disorder. 132 In August 1987 the plaintiff was found in the toilet, with his pants down. The significance of that is that the plaintiff has told practitioners that one of the feelings he has with the onset of an episode of shaking is of a need to empty his bowels. He was shaking and saliva and blood were coming from the mouth. Presumably he had bitten his tongue. He was initially incoherent and confused and a had a lump on the head. He was referred to Dr Terenty, neurologist, who thought that he had had an unequivocal generalised epileptic seizure and commenced him on Tegretol. 133 In July 1988 the plaintiff's general practitioner, Dr Surgeon, noted that he had suffered drowsiness and dizziness off and on for five weeks, but thought that that might have been due to the Tegretol. 134 Dr Terenty saw the plaintiff again in August 1988. His EEG showed bilateral spike and wave complexes and sharp wave activity in the right frontal region. She felt that the shaking turns might be epileptic. 135 She saw him again in February 1989. He had been under stress in the preceding week because of his selection for the National Cycling trials and because of some disagreements at home and he told Dr Terenty that his behaviour had been abnormal in a way he was not able to define well. He had awoken that morning with a twitching of his body and felt anxious and slightly nauseated. His parents had given him Valium orally but that had produced no effect. He had been admitted to hospital and had suffered an epileptic attack lasting seventeen hours. 136 On examination he was anxious and "rather inaccessible". He had tachycardia and there was a fine twitching that shifted from side to side. An EEG showed almost continuous generalised fast spike and wave activity and Dr Terenty and her neurologist partner Dr Cant agreed that this indicated that he was in petit mal status. He was given intravenous Valium and his twitching stopped and the epileptiform activity disappeared from the EEG. When he awoke the next morning his symptoms had abated and his EEG was normal. He was commenced on Epilim. Dr Terenty thought it possible that there had been a severe panic attack which had induced hyperventilation which had precipitated petit mal status. 137 In a letter to Dr Surgeon written on 27 February 1989 Dr Cant said that it was apparent that psychological factors were playing a significant role in the control of the plaintiff's epilepsy and that that had been discussed with his parents. 138 The plaintiff continued generally under the care of Dr Terenty or Dr Cant and continued to take Epilim. Dr Cant wrote on 24 August 1989 that he had been free of all seizures since the one of February that year. 139 The plaintiff wanted to obtain a driver's licence but Dr Cant advised him to wait at least a year. 140 Notes of Dr Surgeon, probably made in about January 1990, record that up to that time the plaintiff had suffered four falls from his bicycle during road work but that the plaintiff did not think that he had lost consciousness in any of them. 141 Between 1990 and 1994 the plaintiff continued on Epilim. For most of the time he was living on Mr Taylor's farm. I am satisfied that he was drinking heavily during that time, one result of which was that his epilepsy was poorly controlled. Not surprisingly, he suffered epileptic symptoms, including one apparently serious seizure in April 1993. 142 In March 1994 Dr Barclay, psychiatrist, saw the plaintiff at Mr Taylor's request. In July Dr Barclay referred him to Dr Warren Kidson, an endocrinologist, who noted his long history of complex epilepsy and that he had been off alcohol for eight months. He concluded after tests that the plaintiff had mild diabetes with reactive hypoglycaemia. The plaintiff was grossly overweight at one hundred and seventeen kilograms. 143 In August 1994 the plaintiff started seeing Dr Robert Hampshire, psychiatrist. Dr Hampshire diagnosed his epileptic episodes as panic attacks and took him off Epilim. He treated him with Valium regularly and with EMDR. 144 The plaintiff took an overdose of Valium whilst under Dr Hampshire's treatment. In October 1994, having returned to Mr Taylor's farm, he went to Singleton hospital with his old symptoms, including shaking. In December 1994 he was taken to the same hospital with a panic attack and there suffered a major tonic/clonic seizure with loss of consciousness. 145 In January 1995 he began seeing Dr Kevin Vaughan, psychiatrist, and spoke about severe episodes of intense discomfort, characterised by sudden palpitations and shaking in arms and legs, associated with feelings through his body "like an electric shock". He was getting these feelings up to ten times a day. He complained of nightmares as well. 146 On 9 February 1995 Dr O'Sullivan saw the plaintiff and thought it unlikely that he had true epilepsy. He thought the history more consistent with panic attacks. 147 Early in 1995 the plaintiff began riding a motorcycle. 148 In March 1995 Dr Terenty again put the plaintiff on Epilim and expressed the view that there was no doubt that the plaintiff had epilepsy. 149 In March 1995 the plaintiff was admitted to Hornsby hospital having punched through a glass window after an argument. 150 In May 1995 the plaintiff was taken to Hornsby hospital after "fitting". Mr Taylor told staff that he had drunk three-quarters of a bottle of vodka. The seizures were described as "generalised" with tremors in all limbs and eyes rolling back, followed by stiffness. 151 In August 1995 the plaintiff was admitted to Hornsby hospital and was discharged following forty-eight hours of acute anxiety, pulling his hair, pinching himself and being generally greatly distressed. The only trigger that could be identified was his having ceased smoking three days earlier. 152 By February 1996 the plaintiff was still complaining to Dr Vaughan of periods of anxiety, but said that his distressing dreams had become less intense. Dr Vaughan thought that the plaintiff had suffered from post traumatic stress disorder but that treatment and antidepressant medication had improved him to the extent that he no longer satisfied the criteria for that diagnosis. 153 In June 1996 the plaintiff consulted another psychiatrist, Dr Canaris, and gave a history and range of symptoms, including descriptions of flashbacks and episodes of the same anxiety and dissociation. In September 1996 Dr Canaris recorded the recurrence of nightmares and depressed mood. The plaintiff was then under pressure from his father about his performance in the vineyard and was subject to the additional stress which his forthcoming marriage had placed upon him. Dr Canaris noted marked mood swings. 154 He last saw the plaintiff in October 1996 after he had been on his honeymoon. He was again becoming anxious and depressed, with episodes of flashbacks and unpleasant thoughts and Dr Canaris formed the view that the major stressor was the approaching litigation. The plaintiff was facing the prospect of not only of this case but was being sued by Mr Benedet's family. 155 Dr Canaris was of the firm view that the plaintiff had post traumatic stress disorder and thought that the mood swings were characteristic of that disorder. 156 The plaintiff has been treated by a psychologist, Dr Walker, since April 1996. Dr Walker is acquainted with the plaintiff's parents and first saw him, I think, at the request of Mr Taylor. She has seen him once per month or more frequently ever since April 1996, in sessions ranging between one and one and a half hours. She has administered psychological tests. She has treated the plaintiff with hypnosis. She has made extensive notes of their conversations. 157 She said that in April 1996 the plaintiff fulfilled all the criteria for post traumatic stress disorder. She thought that the plaintiff was also suffering from panic disorder, and that was the problem she first addressed in therapy. He was concurrently suffering major depression with sporadic very strong suicidal impulse. 158 In a report dated 27 October 1997 Dr Walker expressed the opinion that the plaintiff had shown significant improvement, though he still experienced some of the symptoms of post traumatic stress disorder when confronting the prospect of the court hearing. She thought that although he had made significant headway he still suffered significant vulnerability, depression and panic proneness as a direct result of the collision. 159 When the plaintiff commenced this action in 1998 the latest neurological opinion was that of Dr O'Sullivan, who had seen and advised the plaintiff from 1995 onwards. He was aware that the opinion had been expressed that the plaintiff had epilepsy but concluded after further investigations and assessment that he did not. In a report of 29 April 1997 he expressed that conclusion to have been confirmed by the fact that the plaintiff was not on anti-convulsants, had had no turns and that his panic attacks were being controlled by drugs not ordinarily administered for epilepsy. 160 Dr Walker has always held the view that the plaintiff has suffered from epilepsy, having witnessed him during a major seizure. She is also of the view, however, that the shaking which affects the plaintiff on more frequent occasions is not epileptic in origin but is associated with high levels of anxiety. She and the plaintiff agree that the occasions of that shaking may properly be called panic attacks. 161 According to Dr Walker, the plaintiff's anxiety levels and frequency of panic attacks increased during the second half of 1998. The approach of his court case contributed. His drinking continued. 162 In December there was a fight at his wife's parents' house and she left him. She obtained an Apprehended Violence Order. He decided to commit suicide and told Dr Walker so on the telephone. Dr Walker managed to have a message sent to Mr Taylor and police and an ambulance were sent to the plaintiff. He was admitted to Maitland hospital overnight, having apparently overdosed on Xanax and alcohol. He was allowed to leave on the following day but again became very drunk. Somehow the house on the Hunter Valley property burned down. Again the plaintiff was admitted to Maitland hospital and during the next five days underwent numerous seizures. Their precipitation was put down to withdrawal from Valium and alcohol. 163 The plaintiff attended Dr Walker's rooms at the end of January 1999, suffering what she called panic attacks. Whilst Dr Walker was out of the room for a moment the plaintiff fitted and was found semi-conscious under a table. Dr Walker doubted the correctness of the diagnosis made at Maitland and observed that the plaintiff's drinking was sporadic rather than continuous. 164 Dr Walker's opinion is that the plaintiff suffers from post traumatic stress disorder and has suffered variable depression, at times severe with strong suicidal impulse, panic disorder and epilepsy. She draws attention to the seriousness of the collision itself and to the plaintiff's feelings of fear, helplessness and horror on regaining consciousness, to the recurrent recollections with dissociative symptoms, disturbing dreams, distress at recurring memories and reminders, to his persistent avoidance of stimulated associated with trauma, particularly his resistance to treatment, his inability to express loving feelings, his low libido and his feeling of having no personal future, to his difficulty in sleeping and to the long time the symptoms have persisted since the collision. 165 Dr Andrew Bleasel, a neurologist specialising in epilepsy, saw the plaintiff for treatment in December 1998. The plaintiff told him that since the collision his panic attacks had become worse and that there were two types. The new one was associated with confusion and lasted for some hours or days, always ending with a generalised convulsive seizure and loss of consciousness. He suffered two or three of those attacks per year. The usual type of attack, without confusion, continued to occur weekly. The EEG confirmed a non-convulsive status epilepticus with a right frontal prominence of the epileptiform activity. The plaintiff improved on Valium and Dilantin. It was not clear to Dr Bleasel or to his colleague Dr Schultze whether the longstanding panic attacks also represented partial seizures or whether they were a symptom of an independent psychiatric disorder. 166 A further EEG was done on 23 March 1999. There was bi-frontal epileptiform activity but no sign of the non-convulsive status seen in the previous EEG. Dr Bleasel diagnosed frontal lobe epilepsy, with the possibility of a partially treated idiopathic generalised epilepsy. 167 In a report of 17 April 1999 Dr Bleasel recorded that he had again seen the plaintiff on that day. He had not had any of his typical "panic attacks" but over the past two months had experienced what he described as the beginning of a panic attack. He had a sense of his heart beating and of a desire to open his bowels but it did not progress further and disappeared. Dr Bleasel came to the view that it was likely that the plaintiff had frontal lobe epilepsy, which had begun in adolescence, and that the so-called "panic attacks" were in fact frontal lobe seizures. Their duration was an unusual feature, but since Dr Bleasel had recorded an episode of non-convulsive status epilepticus he thought it possible that the prolonged episodes reported by the plaintiff were in fact the same thing. 168 Dr Bleasel was unsure why they should have become worse after the collision. He thought it intriguing. It was possible, he said, that the plaintiff had suffered some minor head trauma that had worsened the epilepsy. Another possibility was that his excessive alcohol consumption in the months and years following the accident had worsened the control of his seizures. 169 Dr Bleasel thinks that the plaintiff had had epilepsy since the age of eleven or twelve and that the chances of a remission to a point where he no longer needed to take medicine was extremely unlikely. He thinks that the chances of the plaintiff's becoming seizure-free was relatively small, less than ten or twenty per cent, and that the plaintiff would probably require different medications. He thinks that reduction in stress and an abstinence from alcohol might lead to a fifty per cent chance of improvement. It is possible that the incidence of attacks might increase with sleep deprivation, stress or overindulgence in alcohol. He observes that the plaintiff has quite an unusual epilepsy to be mistaken as panic attacks. These manifestations that have been so described could, he said, go on for some days without ending in a convulsion. They seem to last hours in a day. 170 Dr Bleasel was asked about the opinion of Dr Terenty that a panic attack might have induced hyperventilation which in turn led to petit mal status. Dr Bleasel disagreed with that reasoning and suggested that there was one problem only, that of epilepsy. The panic attacks had been misdiagnosed as panic attacks and were epileptic seizures. However, he conceded that it was possible for an anxiety attack and an epileptic seizure to happen at the same time. 171 Dr O'Sullivan has changed his opinion and now agrees with Dr Bleasel. 172 I think that the opinions of Dr Bleasel and Dr O'Sullivan should be preferred to that of Dr Walker. I am satisfied that the plaintiff has been epileptic from the age of ten or eleven years and that the symptoms of periodic or occasional attacks which I have summarised, including those which he calls "panic attacks", result from his frontal lobe epilepsy. 173 The plaintiff asserts that he has been and will continue to be more seriously affected by his epileptic condition because of the direct and indirect effects of the collision upon him. Dr Bleasel and the other neurological experts who have given evidence appear to agree that stress which leads to sleep deprivation will in turn lead to an increased susceptibility to epileptic seizures and that alcohol taken in excess may inhibit the effect of anti-convulsive drugs and render the patient likely to an increased frequency of seizures. Head injury might have the same effect. 174 It is the plaintiff's case that his epilepsy has been worse since the collision for these reasons. His grand mal seizures have been few in number and are well documented. The difficulty lies in knowing whether the lesser seizures, during any of which the plaintiff would have remained conscious and able to function to some degree, have increased in frequency. 175 It was put on behalf of the defendants that the plaintiff had exaggerated his symptoms. The case was put by counsel for Mr Keogh and the Touch Association in the following passage of cross-examination of Dr Walker, the psychologist who has been treating the plaintiff since 1996 - Q. Isn't it a most reasonable analysis of what has happened to the plaintiff that following the accident he has gone along satisfactorily from 1990 through until sometime in the latter half of 1994 and then has been taken off Epilim by Dr Hampshire and having ceased anti-epileptic medications, has succumbed again to the effects of that disease and that his subsequent anxiety and distress are associated with that mistreatment of his underlying organic problem? A. The problem is that I thought the history didn't show that he coped adequately after leaving school. Q. When you refer to the history for that, Doctor, you are talking about what he told you? A. What he told me yes. Q. As recorded in those notes? A. Yes, that's right. 176 The reference to "those notes" is to extensive notes taken by Dr Walker during many consultations with the plaintiff. 177 Dr Bleasel refers to the plaintiff's "panic attacks" as a prodrome, an epileptic stupor which, notwithstanding the suggestion in the name itself, may not lead on to any other form of epileptic activity. Symptoms often stop there. There is no objective sign by which the frequency of occurrence of such epileptic activity can be measured. None of the expert witnesses has been in a position to observe the plaintiff for long enough to draw any conclusion about that. The evidence for increased frequency comes only from the plaintiff himself and, to a more limited extent, from Mr Taylor. 178 The plaintiff was attacked as being an unreliable witness. It was put that following the treatment of the plaintiff by Dr Terenty and Dr Cant in 1989 and the administration of Tegretol and then Epilim it was quite obvious to the plaintiff and Mr Taylor that the plaintiff was suffering from and was being treated for epilepsy. Yet, it was submitted, the plaintiff had been at pains to put across to experts who were likely to give evidence that there was some doubt about that. According to Dr Westmore, a psychiatrist called on his behalf, the plaintiff told him that in October 1999 that epilepsy had only recently been diagnosed. The plaintiff's explanation was to say that what he had said to Dr Westmore was that it had only recently been confirmed, leaving the impression that Dr Westmore had made a mistake. It will be recalled, however, that the plaintiff personally has always believed that his panic attacks are not epileptic in origin. 179 It was submitted that, against Dr Cant's advice, the plaintiff had applied for a learner driver's permit. Records produced by the Roads and Traffic Authority show that a learner's permit was issued to the plaintiff on 1 June 1990 and that a provisional licence was issued on 2 July 1990. An unrestricted licence followed on 4 June 1991. The plaintiff was asked about this and said that Dr Surgeon had given him a letter to give to the Authority. The records of the Authority were produced to the Court on subpoena but no letter was contained in or referred to in them. The first mention in the records of epilepsy is an entry on 14 May 1991. The first mention of any nervous disorder is on 26 September 1994. 180 It was put that the plaintiff had not been frank with the authorities at Charles Sturt University. When applying to withdraw from a subject in September 1991 he said that he had suffered from an asthma attack. In fact that was not the reason at all and, as he told Dr Walker, he had been drinking excessively during his time in Wagga Wagga. His father had removed him from the university at the end of the first term, having travelled to Wagga and found him drunk, having vomited into a bucket in his room. It was put that his use of alcohol had not materially changed during the intervening months and it was not because of asthma but because of the plaintiff's continued excessive use of alcohol that he desired to withdraw from the subject again in September. 181 Secondly, in October 1991 he wrote a letter to the university stating that he had been requested by his employer to withdraw from his then current study of viticulture because the work on the vineyard had become rather intense and that he was needed to work, and that if he could not do so his job would be terminated. That, it was submitted, was untrue. 182 It was submitted that there was a conflict between the evidence of the plaintiff and Mr Taylor about the reason why the plaintiff returned to Sydney from his work at the vineyard. The plaintiff told the Court that it was because Mr Taylor was in financial difficulties whereas Mr Taylor said that the plaintiff could not do the work. 183 Then it was submitted that the plaintiff had failed to seek treatment following the asserted dramatic increase in the incidence of attacks. It was pointed out that there was no remarkable seizure until the plaintiff was taken off Epilim in 1994. 184 A letter was written by Dr Surgeon on 29 October 1990, stating that the plaintiff had been under Dr Surgeon's care for five years and referring to the collision on 6 May 1990. It said that since then the plaintiff had refused to talk to his family about the incident and had refused all professional counselling offers. His relationships at home and school had suffered severely and that that would certainly have greatly affected his ability to study and to do his higher school certificate. The letter concluded with the observation that the fact that the plaintiff could not bring himself to talk about the matter underlined the distress it had caused him. 185 It was submitted that the remarkable omission from the letter was any mention of increased frequency of shaking attacks. Neither was there any mention of symptoms of anxiety or of panic attacks in Dr Surgeon's notes from July to December 1990. 186 On 2 November 1990 Mr Khoury, the Year 12 co-ordinator of the plaintiff's college, wrote - Earlier in the year I was informed by Roy's father that Roy was involved in an accident while on his bicycle and that a man died. Since that accident, in my capacity as Year 12 co-ordinator, I have observed a change in Roy's overall manner. Immediately following the accident, Roy was visibly quiet and withdrawn. He became unusually inactive and did not involve himself a great deal in classroom or discussion. He seemed lethargic and disinterested (sic). There has been some progress and improvement in Roy's attitude in the past months. However, I have no doubt that his studies and his overall academic development were greatly disadvantaged by the bicycle accident. This is compounded by the fact that Roy is a competitive cyclist and loves the sport. He has been adversely affected both academically and socially. 187 The implied criticism was that the omission from that report of any mention of shaking was remarkable. 188 Mr Taylor was asked about the condition of the plaintiff after the collision. He said that he screamed and had bad nightmares every night and could not talk about the accident. He rejected the idea of treatment. He tried to avoid sleep and was always tired. Mr Taylor was asked how often after the accident he would see the plaintiff with an anxiety attack, as it was termed, and said that such attacks were ten times as frequent as before, were very much more severe and would last longer. One would occasionally run into another. He said that by two or three months after the collision it seemed as though they were happening almost every week. 189 It was submitted on behalf of the defendants that Mr Taylor should not be accepted in this evidence. 190 Of course, the plaintiff has an interest in exaggerating his symptoms, and I think that some of the criticisms of him that I have summarised show that he is not always truthful in describing important events and may be inaccurate. I am not prepared to accept on his evidence alone that the panic attacks, which I think are epileptic in origin, occur as frequently or last as long or are as debilitating as he would have the Court accept. On the other hand, I think that the evidence of Mr Taylor is reliable in this respect. I am satisfied on his evidence that there was a substantial increase in the incidence of shaking and in the intensity and duration of attacks after the collision. 191 I do not think that the plaintiff's fall can itself account for the increase in epileptic symptoms. It is said that after he fell to the track he lay unconscious for about ten minutes, but all the accounts of the period of unconsciousness come from medical reports, which must in turn have derived from whatever the plaintiff himself said about the matter. He cannot have known how long he was unconscious and must have been relying on what somebody else told him. When he came to, the plaintiff began, with help, to walk on the track and although he complained of a bad headache his main concern was to get his sore muscles moving again. When his father returned he did not complain of head injury. He had been wearing a helmet, of course. As a trained psychologist having a detailed knowledge of the plaintiff's medical history, including Dr Terenty's diagnosis of epilepsy and prescription of anti-convulsant drugs, Mr Taylor would, I think, have been alert for signs of head injury and any possible epileptic signs. In deciding to take the plaintiff home rather than to hospital he must have had no concerns in that regard. This may be said with some confidence in view of the readiness with which Mr Taylor has been prepared over the years to refer the plaintiff to medical practitioners when appropriate. In view of this and in the absence of evidence of head injury or of unconsciousness for any substantial period I think it unlikely that head trauma had any part to play in the exacerbation of epileptic symptoms. 192 I accept the evidence of Mr Taylor that for a substantial time after the collision the plaintiff slept badly, either because he stayed awake so as to avoid nightmares or because he was woken by them, and I think that such a serious interference with his sleep must have led to increased frequency, intensity and duration of his epileptic seizures. However, I do not think that those effects of the collision have lasted indefinitely. I find it difficult to accept the plaintiff's evidence that the frequency of his nightmares has not declined in the ten years since the collision. Although he may well still have nightmares, I do not think that after this length of time they can be attributed to the collision. The plaintiff's pre-accident history shows that from an early age he suffered indifferent health and was subject to psychological upsets. For reasons which I shall explain, I think that the various effects of the collision on the plaintiff have by now been subsumed by the effects of other events and activities in the life of the plaintiff. 193 The management of the plaintiff's epilepsy has been attended by a number of difficulties, first because his symptoms are so unusual that for some time treating practitioners doubted whether the plaintiff was epileptic. An important feature of the plaintiff's medical history has been the recurrence or exacerbation of what are now known to be epileptic symptoms under the influence of temporary stress. After he was put onto Tegretol he continued to experience epileptic symptoms under the stresses of his forthcoming selection for the National Cycling trials and of the unpleasant atmosphere at home. 194 After the collision but before sitting for the Higher School Certificate the plaintiff began to drink alcohol to excess. Since then he has regularly resorted to the abuse of alcohol. On some occasions his drinking has been a reaction to the stress he has been under, but there is no reason to think that that is the only reason why he drinks to excess, and I think that he is prone to the overuse of alcohol independently of stress. I do not think, however, that his use of marijuana at Wagga Wagga was significant. 195 There is no doubt that the plaintiff was badly affected by the collision. The very fact that he could not seriously apply himself again to cycling demonstrates that. I accept that the collision was responsible for the exacerbation of the plaintiff's epileptic symptoms in that the plaintiff responded by drinking to excess, so inhibiting effects of the anti-convulsive drugs he was taking, but I think that that effect, like the deprivation of sleep, has by now run its course. 196 Because of his fragile personality the plaintiff was liable to react badly to stress. It seems possible that stress produced whatever symptoms caused Mr Taylor to have the plaintiff seen by medical specialists when he was very young. The stress of imminent trials, selection and races was likely to exacerbate his symptoms. I do not doubt that the approach of the higher school certificate examinations would have had the same effect. 197 Since the collision there have been numerous substantial occasions of stress. The plaintiff has responded by resorting to the use of alcohol and, whether because of its effects upon his drug regime or because he was deprived of sleep or for other reasons, he suffered epileptic symptoms of the greater or the lesser kind. Whilst he was living in the Hunter Valley from June 1991 onwards he made two and perhaps three suicide attempts in response to stressful situations. He was concerned when police executed a search warrant at the vineyard, suggesting some impropriety on the part of Mr Taylor. His parents' marriage came to a bitter end in the early 1990s. He gave up football because of the stress of seeing a colleague injured in a tackle. 198 He married in September 1996. He was still drinking and trying to hide the fact from his wife. He continued to drink to excess until the end of 1998. In April 1998 he had to be admitted to Maitland hospital having witnessed a fatal semi trailer accident. In December 1998 there was a fight at the home of his wife's parents and his wife took out an apprehended violence order against him. 199 Individually and in combination these circumstances were serious. The plaintiff's personality was such that they would have had the same effect upon him whether or not he had been involved in the collision. 200 A further independent exacerbation of his condition took place late in 1994 when Dr Hampshire took him off Epilim and he began to suffer grand mal seizures. 201 Dr Vaughan and Dr Canaris, who saw the plaintiff in 1995 and 1996 respectively, noted a history of periodic nightmares, anxiety, depression and mood swings and considered him to be suffering from post traumatic stress disorder. However, Dr Vaughan also considered that he suffered from panic disorder, a diagnosis that must be doubted in the face of Dr Bleasel's evidence. 202 Dr Vaughan thought that by March 1996, after treatment and anti-depressant medication, the plaintiff's symptoms had improved to the extent that he no longer satisfied the criteria for post traumatic stress disorder. The plaintiff saw Dr Canaris, who does not appear to have been informed of the part played by Dr Vaughan or of his opinion. Dr Canaris saw the plaintiff seven times between June and October 1996. The plaintiff told him of flashbacks, visualising the deceased under his wheel and of episodes of severe anxiety and dissociation. Dr Canaris noted a recurrence of nightmares with depressed mood when he saw him again at the end of September 1996. That had occurred in the context of some pressure from Mr Taylor, whose expectations the plaintiff was having trouble in meeting. There was the additional stress of the plaintiff's impending marriage. Dr Canaris came to the view that he was suffering from post traumatic stress disorder. 203 Dr Westmore, psychiatrist, has not treated the plaintiff but has provided reports for the Court and has given evidence. He was supplied with a copy of Dr Walker's report in which she stated that she had been treating the plaintiff for chronic post traumatic stress disorder, depression and panic disorder. Dr Walker considers the post traumatic stress disorder chronic and is not confident about the prognosis for his other conditions. She observes that they continue despite anti-depressant and anti-epileptic medication and the fact that the plaintiff has given up benzodiazapines and alcohol, substances proved by experience to exacerbate his symptoms. 204 Dr Westmore is of the view that the plaintiff's problems were becoming worse and observed what to him appeared to be a progressive decline in his level of functioning, psychologically, socially and occupationally. 205 He believes that the plaintiff suffered an adjustment disorder with depression and anxiety as a result of the collision and that that disorder has in turn adversely affected his marriage, his family relationships, his career and his abuse of alcohol. He thought that although there might be some genetic vulnerability to misuse of drugs and alcohol it was more likely that the plaintiff's depression was linked to his alcohol and drug abuse. 206 Two very extensive reports were written by Dr Smith, psychiatrist, who gave evidence on behalf of the Council. Dr Smith conducted a wide ranging review of the many medical reports and notes and his principal concern appears to have been to gather evidence and draw conclusions as to the lack of candour of the plaintiff, resulting in a tentative conclusion that he was feigning his symptoms, rather than to offer a psychiatric diagnosis based upon assumed facts. I am ultimately unable to place much weight on Dr Smith's opinion because I disagree with his contention that by and large the plaintiff is feigning his symptoms. The reason why he lacks reliability is that he attributes to the collision symptoms that are explicable in other ways. 207 The plaintiff has given many accounts to many medical practitioners and psychologists over many years. It would be surprising if he were universally consistent in his histories. Dr Smith gives the plaintiff no credit for the countless times he has given consistent accounts but draws attention to every occasion upon which he can find that the plaintiff has given an apparently inconsistent account. On some of those Dr Smith is mistaken. For example, he makes much of a report by Dr O'Sullivan to the effect that the plaintiff told him that he started drinking in 1989, that is, before the collision. Dr Smith places some weight on that report, because if true it would bear upon the aetiology of the plaintiff's post-collision symptoms and might show that the plaintiff was putting forward at the hearing a version about his drinking which was false and which he knew or believed favoured his case. The plaintiff was asked about this and denied telling Dr O'Sullivan any such thing. The implication was that Dr O'Sullivan had made a simple misrecording of fact. That is what I think must have happened. 208 Dr Smith is of the view that the documentary evidence suggests that at the most the plaintiff suffered an adjustment reaction to the collision, with social withdrawal, that was resolving within six months of the event. He placed some weight on the fact that Dr Surgeon saw the plaintiff on six occasions between 27 July and 9 December 1990, yet made no mention in his notes of any anxiety symptoms, stress symptoms or panic attacks associated with any of the visits. In fact, although the notes commence in 1985 they make very little reference to shaking. A possible innocent explanation for the absence of any relevant note after May 1990 is that, as Mr Taylor says, the plaintiff was resisting all attempts to have him treated for the effects the collision was having upon him. 209 Dr Roldan, a clinical psychologist, provided a lengthy report and gave evidence also on behalf of the Council. Like Dr Smith, Dr Roldan took the view that the plaintiff was intent on distorting his history so as to play down non-compensable aspects, including pre-accident interpersonal problems at school and at home, a high level of instability within the home environment and family conflict and psychosocial disruption. The plaintiff was also intent on denying any post-accident history of unrelated stressors, such as unresolved issues about his disrupted upbringing, ongoing family conflict and other issues. He thinks that the plaintiff exhibits characteristics consistent with a diagnosis of personality disorder of the borderline type. He notes that it might be argued that that disorder may have arisen as a consequence of allegedly chronic post-traumatic stress disorder, but he doubts whether the plaintiff suffers from that disorder. 210 He thinks that a diagnosis of post traumatic stress disorder does not fully explain the plaintiff's presentation and history and that the plaintiff is likely to have a longstanding and unrelated history of personality disorder, and that that may go a long way towards explaining his life difficulties, including, at least in part, alcohol abuse, episodic depression and suicidal gestures. He is also of the view that there is a longstanding and accident-unrelated history of frontal lobe epilepsy as well as a form of panic attacks. 211 It is not unusual to find a difference of expert opinion, but the dichotomy of view about what I might call the plaintiff's psychological condition and the extent of any contribution to it by the collision is remarkable. I have found none of the expert witnesses in this field acceptable in every respect. 212 I am unable to accept unreservedly the opinion of Dr Walker, though she is the professional who knows the plaintiff best. The plaintiff plainly believes that all his symptoms stem from the collision and that if it had not happened he would have had a normal progression through tertiary education, leading to a satisfying life as a viticulturist and would have become a champion cyclist. Dr Walker has become convinced that the plaintiff's view is correct. She has observed that the plaintiff was "clearly heading for Olympic standards" and that at school his grades were improving and that he had a secure concept of his future. This notwithstanding that the plaintiff told Dr Vaughan that he was struggling at school. She observed that "somewhat incredibly, Roy himself was not taken to hospital" after the collision. These statements and implications do not, I think, necessarily stand up to examination, and the impression that I have received having read Dr Walker's reports and having seen and heard her examined and cross-examined at length is that she has to some degree made herself an advocate for the plaintiff. 213 I think that at the time of the collision the plaintiff was probably suffering from a personality disorder of the borderline type. I accept the evidence of Dr Roldan that such disorder is normally associated with inherent factors such as a dysfunctional early psychosocial environment affecting emotional and personality development and that it is known to become salient in late adolescence or early adulthood. Persons with personality disorder are known to have a lifelong pattern of emotional instability, detrimentally affecting relationships and general functioning. From his early years the plaintiff has exhibited hyperactivity and has been exposed to distressing behaviour on the part of his mother. He has also been exposed to substantial psychosocial tension and I think that the description of his family as dysfunctional is not inapt. His personality disorder may also have inherited elements, and a description of his mother's behaviour suggests that there may be a genetic origin. It is possible also that the plaintiff's frontal lobe epilepsy has played a role in the emergence of personality disorder. 214 I am satisfied that the plaintiff has suffered from post traumatic stress disorder and that its symptoms may have aggravated the plaintiff's personality disorder. 215 I also think that at the time of the collision the plaintiff suffered a depressive illness which had a biological component. I think that the effect upon the plaintiff of the collision, particular the post traumatic disorder, has been to make his depression worse. 216 I think that he is still suffering from post traumatic stress disorder and depression. The post traumatic stress disorder is due to the collision. The duration and intensity of the plaintiff's depression may also be said, though with less confidence, to have resulted from the collision. 217 The stressors which have affected the plaintiff since the collision have likewise had a significant effect upon the psychological health of the plaintiff. Most of them were unrelated to the collision and, I think, not made worse in their effect by the prior fact of the collision. I am thinking particularly about the suicide attempts, especially the recent one which followed the plaintiff's wife's leaving him, and a return to excessive consumption of alcohol. 218 If the collision had not occurred, the plaintiff would now be in better psychological health than he is, but he would not have been in good psychological health. By 1990 his psychological condition predisposed him to serious consequences from traumata which might not affect a psychologically healthy person. I think that his psychological health would probably have deteriorated if he had not been involved in the collision. 219 The prognosis for his post traumatic stress disorder is poor and I think that he will probably suffer from its symptoms for many years into the future. I think that the symptoms will not always be as bad as they are at present, however, provided he can follow a rehabilitation programme and get back into the work force and begin to lead a life which he himself regards as worthwhile. 220 The plaintiff's achievement at school until Year 12 was average. At eight and a half years old his IQ was found to be in the high average to above average range, which has been said without challenge to indicate 110. In the school certificate he obtained grade 3 in English - the middle 40 per cent of performers from the thirtieth to the seventieth percentile - and grade A in intermediate mathematics. According to Associate Professor Athanasou those results indicate a pupil of average achievement. 221 In a Year 12 report of 27 April 1990, just before the collision, the summary comment was - Roy is an affable young man. If he wishes to attain which reflect his ability, he will need to approach school and study more seriously than he is at present … 222 Following the collision the plaintiff returned to school and received this report in September - Roy is a congenial young man who has made satisfactory progress this year. If he continues to apply himself to his studies before the HSC he should attain results which reflect his potential. 223 The plaintiff's results in April and September 1990 were as follows - Subject April September
Religion 33 30 English 54 45 Mathematics 47 50 Biology 65 61 Geography 59 68 Economics 51 39 General Studies 25 35 224 Professor Athanasou considers the plaintiff's Tertiary Entrance Rank of 41.3 consistent with his performance in the school certificate. Then he compares the school assessment with the examination marks for the Higher School Certificate. They are as follows - Subject School Assessment Examination Mark Mark English 63 56 Mathematics 53 57 Biology 61 59 Geography 75 62 Economics 60 61 General Studies 36 34 225 Professor Athanasou expresses the opinion, which I accept, that on the basis of this evidence the plaintiff's performance at school was not affected by the collision. He did consider that the HSC results might have been affected, however, and observed that the examination marks when compared with the school assessment marks represented a drop of seventeen marks across eleven units of study, equivalent to about one-fifth of a standard deviation and about three points of IQ. Assuming a perfect relationship between school assessment and examination mark and extrapolating the difference of one-fifth of a standard deviation to the plaintiff's Tertiary Entrance Rank, Professor Athanasou came to the view that the plaintiff should have gained a rank a little above 45 or at the most 50. 226 Associate Professor Athanasou did not take into account, because he was not told, that the plaintiff was epileptic and might suffer stress in the face of the higher school certificate examination. That is a factor that I must take into account and I think, therefore, that the plaintiff's results might reasonably have been expected towards the bottom end of the range proposed by Associate Professor Athanasou. 227 Although the plaintiff and Mr Taylor had hopes that he might follow his father into the practice of psychology there was in my view no prospect that he would be able to do that. 228 The cut off mark for the degree of Bachelor of Applied Science (Wine Science) would have been 50.45, and the plaintiff would probably have achieved that mark. Unfortunately, however, the assumed knowledge for the course was 2 unit Chemistry, a subject the plaintiff did not take. He based his wage loss claim on the inability to complete the course he actually undertook, the Associate Diploma of Science in Viticulture at Charles Sturt University, and go on into employment in that industry. I think that it was because of the plaintiff's over use of alcohol that he failed to make any satisfactory progress in the course at Charles Sturt University, and I think that the time was so proximate to the collision that that inability is fairly attributable to the effects of the collision. I think it very likely that if he had not responded by drinking alcohol in the way he did his post traumatic stress disorder might itself have seriously interfered with his progress in the course. 229 I think that but for the collision the plaintiff would have completed the course successfully and would have had a reasonable chance of making a career as a grower of wine grapes. I accept the evidence of Professor Athanasou that the plaintiff is suited to a restricted range of occupations from an unskilled to a semi-skilled level. 230 He has not made good his claim that he is unemployable and will continue so indefinitely. The effects upon him of his post traumatic stress disorder have not been uniform over time. Before he finished treating him in 1996 Dr Vaughan thought that he had improved to the point at which he no longer fulfilled the criteria for that disorder. 231 It was his and Mr Taylor's evidence that he could not really cope with the work on the property. Whilst I am prepared to accept that the plaintiff was not free from difficulty from post traumatic stress disorder and from the stresses of other events that happened during that period, especially those which followed the unfortunate diagnosis of Dr Hampshire late in 1994, there are indications that the plaintiff was able to perform satisfactorily. 232 During the years of his residence in the Hunter Valley, the plaintiff came first in the twelve-month course at the Kurri Kurri TAFE. That course was apparently linked to a traineeship in viticulture and as part of the course the plaintiff's supervisor was obliged to inquire into his progress on the job on his father's property. His supervisor, Mr Bryan Hubbard, gave evidence and said that he taught the plaintiff for a short period. He saw him briefly on several occasions whilst the plaintiff was working on his father's vineyard. He visited the vineyard for about an hour and a half on each of those occasions. He was not aware of the plaintiff's accident or of any disability he claimed to have, either whilst he taught him or when he visited the vineyard. The plaintiff applied himself to his studies and from Mr Hubbard's observation he believed that if the plaintiff had been able to continue to apply himself with that degree of commitment he would have had the capacity to complete the certificate course upon which he had embarked. Mr Hubbard never went to the vineyard except by arrangement. When they had a meeting there they would discuss the processes that needed to take place over the next three months just to confirm that the plaintiff was aware of what needed to be done. He never saw the plaintiff affected by alcohol. The plaintiff was the operator of the equipment at the vineyard, including tractors specially designed to travel between the vines. He did pruning, weed and pest control by spraying with equipment attached to the tractor power take off. He also carried out irrigation work, repairing or replacing equipment as needed. 233 It might be unsafe to draw from that evidence a conclusion that the plaintiff suffered no disability arising from the accident, particularly related to his post traumatic stress disorder, during the period that Mr Hubbard was acquainted with him. However, it by no means appears that the plaintiff was altogether unable to do the work at the vineyard. I think that he must by that time have recovered a significant proportion of his wage earning capacity in that occupation. The fact that things became worse later on, because of Mr Taylor's financial difficulties, with the consequent requirement for the plaintiff to come to Sydney and obtain the job at St Vincent's Hospital in 1994 and the disastrous results that followed his withdrawal from Epilim, had, of course, nothing to do with the collision. 234 The plaintiff's most recent job ended in September or October 1999 because of what he called a panic attack, which must be taken to mean an epileptic seizure. 235 Whilst I accept that the plaintiff continues to suffer from a post traumatic stress disorder or an anxiety disorder it has to be recognised that although there is a causal relationship between the collision and those conditions, they exist and would have existed independently of the collision because of the fragile personality of the plaintiff before the collision and because of independent stresses which have since had a significant effect upon him. I think that because of those matters his ability to have a full and satisfying working career would always have been severely compromised. In one sense the effects of the collision upon him can be regarded as accelerating the effect of independent forces. I shall therefore apply a significant discount when assessing his economic loss. 236 I think that the plaintiff's having given up serious cycling is a result solely of the collision. Although he might well have taken up the sport again more recently, the lay-off has been so long that there is no real prospect that he can attain his former fitness and competitiveness and realise his original potential. I shall take account of that in my assessment of his general damages. 237 It is a different thing, however, to say that he would have obtained selection at the Olympic Games, would have turned professional and would have earned substantial sums of money in that pursuit. He had finished in tenth place in the Australian Championships not long before the collision. He was the second-best sprinter in New South Wales. Mr Taylor spoke of him in glowing terms, but I think that he may not have been completely objective in this respect. Although the plaintiff was young and might have been expected to improve, the probable effects of his epilepsy upon him must be considered. Falling to the track or the road is a common hazard of cycling at that level and it seems to me that head injury represents a substantial risk of the sport. No doubt the use of helmets ordinarily provides protection, but the plaintiff was particularly vulnerable and at a consequent disadvantage when competing with others for places in teams and events and, ultimately, in the earning of income. In addition, the stress of major competition would have tended to precipitate the onset of epileptic symptoms. 238 Although there was evidence of very high sums of money earned by exceptional professional cyclists, I do not accept that the plaintiff had any chance of joining the ranks of such persons. Ultimately he put his wage loss claim by comparison with a viticulturist, and I think that that was a realistic approach to the case. 239 The schedule provided by the plaintiff shows that between 1993 and 2000, until he ceased work altogether, the plaintiff earned at a rate varying between just under one-half and about three-quarters of the wage of a viticulturist. His total net wage loss on that basis, calculated to the end of 2000, is $97,300, and I shall allow him that amount. 240 I shall allow him twenty years of wage loss for the future. I think that after twenty years he will have become rehabilitated, because I think that rehabilitation is possible, or would for independent causes have become practically unemployable. This will subsume any discount for vicissitudes. I allow him for that period the sum of $300 per week, which is approximately half the average net weekly earnings for full-time adult employees. 241 I assess the plaintiff's damages as follows -
I assess general damages at $80,000. One-half of that figure will be attributable to the past and I allow interest on that component at two per cent for ten and a half years, which comes to $8,400.
I allow past economic loss for the years 1993 to 2000 inclusive at $97,300. In addition I shall allow interest at half the Supreme Court rates for the whole of that period.
I allow the plaintiff $300 per week for twenty years. Allowing three per cent on the fund, that requires a figure of $236,370.
The plaintiff's claim for the past is $13,623, but I think that not all of this is attributable to the collision. I allow $8,000 including interest. For the future, I allow $25 per week for twenty years. This is intended to provide for medication and consultation with specialists, including counsellors, occupational therapists and rehabilitation therapists. Assuming earnings at three per cent, the figure required is approximately $20,000. I allow that amount.
I assess loss for the past at seven per cent of the plaintiff's past economic loss and for the future at eight per cent of his future economic loss.
Contributory negligence 242 The plaintiff's damages will be reduced by fifty per cent for contributory negligence. 243 Counsel may bring in short minutes to give effect to these assessments. Subject to matters counsel wish to put to the contrary, the plaintiff should have his costs against the Council. All other defendants and cross-defendants should have verdicts and costs. **********
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TAYLOR
CANTERBURY MUNICIPAL COUNCIL & ORS
(1994) 179 CLR 520
(1988) 12 NSWLR 293
(1998) 192 CLR 330
(1955) 95 CLR 43