What is Negligence   AUSTRALIAN & NEW ZEALAND NATIONWIDE INSURANCE SERVICES
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What is Negligence?

Negligence is the primary trigger for liability to arise in matters of personal injury and/or loss to property.

In general terms you cannot be liable for something unless you have been negligent in a way to have caused or contributed the loss and/or injury. For the purposes of this section of our website, we will concentrate on the relatively narrow view from an insurance risk/claim perspective.

Over the years, the narrow view between the relationship of negligence to liability has widened as legal practitioners have developed skilful and perhaps artful arguments to uncover negligence no matter how benign the negligence was. Indeed, in many a private conversation between principles of our firm and members of the legal profession it has often been said that a sympathetic court often looks for a "hat to hang its decision on" thus, if the court wants to find an act of negligence to trigger liability, it will despite how unreasonable the decision might seem to the wider community who has to fund the decisions.

In recent times courts seemed to have moved towards a higher hurdle of negligence to trigger the liability factor. There are many arguments for and against this trend however, we are of the view that such has benefited many areas of the community from community associations to small business who as a result of high insurance premiums for public liability insurance were adversely impacted on.

In recent years, the horse riding industry almost closed down and community groups and associations disbanded because their risks were considered too high. On first glance these two examples are diametrically different to one another however, the potential for a liability claim to arise from a psychological incident during a community gathering was almost as high as it would have been from an accident occurring while riding a horse.

This section of our website will be updated regularly with more information as and when trends change or interesting judgments are given. As for our Study Examples we have chosen to cover the "Shirt Principal" as our first because for almost 40 years it has set the standard for negligence - (but, this is slowly changing).

We welcome any feedback that you might have.

Study Example 1 - The Shirt Principal
Study Example 2 - Boat collision on 4th February 1998

Study Example: 1. The Shirt Principal

NEGLIGENCE
Times are changing…

For decades, one case has underpinned negligence payouts.

When Brian Shirt fell off his water-skis into shallow water in Tuggerah Lakes, north of Sydney, almost 40 years ago, he hit his head on the lake bed and suffered quadriplegic paralysis. Shirt sued Wyong council for negligence and his case went all the way to the High Court.

The judgement in favour of Shirt in 1980 delivered him $280,000 and changed the way that negligence claims are resolved in Australia.

Now the Shirt ruling is under attack not only from organisations bemoaning a culture of suing for anything, but also from the government and lawyers.

Most recently, it was highlighted in a recent case in the NSW Court of Appeal where an employer was found not to be responsible for an injury sustained by an employee lifting her laptop computer out of her car.

Members of the High Court itself, as the highest justices of the land, have also hinted at growing resentment over the Shirt case as they move towards reducing the scope for negligence claims by anyone from stressed workers to schoolchildren.

Earlier this year, the High Court ruled that a school was not negligent when an eight-year-old child was injured at school.

In a sign that people will have to take greater responsibility for their actions, the court ruled that the school was not legally responsible for what happened.

But while many people who suffer physical injuries take their case to the courts, it is psychological issues such as stress claims and bullying that are "the health and safety issue of the 21st century", according some industry experts.

The federal government is so concerned about the growth in stress claims that it is looking to tighten legislation and define what can actually be regarded as a "psychological injury".

It is not just about the definition of what constitutes an injury. What also needs to be looked at is something more basic whether an employer can reasonably foresee that a particular injury may occur and what that employer may have done to prevent it.

The shirt case which revolved around the issue of breach of duty of care was seminal in defining the previously divergent notion of foreseeable risk.

Shirt's lawyers argued that because the council had erected signs, facing the shoreline, that said, "Deep Water", their client assumed that the area of the lake around and beyond the sign was safe for water skiing. The council it was argued should have known that a reasonable person might have concluded that the lake was a safe place in which to water-ski. As it turned out, the signs had been erected a couple of years previously to alert swimmers that recent dredging work had created a channel alongside a jetty.

The case ended up in the High Court where Justice Anthony Mason famously said: "A risk of injury which is remote, in the sense that it is unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable."

If the risk is foreseeable then it is necessary to determine what a reasonable person may do by way of response to that risk.

The decision to uphold the appeal from the full bench was a victory for Shirt, although it was not a unanimous decision Justice Ronald Wilson dissented.

Fast forward 25 years to the case of Nuha Jamil Koehler. Five months after starting a three-day-a-week job at Cerebos, a food and health supplements company, Koehler became sick and stopped working. Although her doctor initially thought her illness was physical, she was later diagnosed to be suffering a psychiatric illness.

The District Court in Western Australia said that Cerebos had failed its duty of care by not ensuring a safe system of work.

However, the High Court ruled that Cerebos should not be found liable for the psychiatric illness because it could not have reasonably foreseen that the employee was exposed to a risk of psychiatric injury as a consequence of her work duties. The unanimous judgement was welcomed by employer groups.

In his separate judgement, Justice Ian Callinan spoke out about the Shirt principle, although still agreeing there was no case for negligence.

The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah [the Biblical prophesier of calamities].

"I suppose there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe, is just around the corner," the judge said.

"After all, Malthus in 1798 famously:

"We can't just simply allow the floodgates to open
and forget the rules that common law places on these cases."

predicted that the population of the world would inevitably outstrip the capacity of the world to sustain it."

Since, "neither party sought to challenge" the Shirt ruling, Callinan said he was bound to apply it.

But his comments on the Shirt case were taken as an indication of the growing level of unease about its wide application, such that anything "not far-fetched or fanciful" is foreseeable. Businesses, particularly insurance companies, would benefit from a narrower definition but will have to wait until it is challenged in a High Court case or changed by legislation. Barrister Peter Tomasetti was in his early 20s, working in Sydney's famous Selbourne Chambers, when he was asked to be junior barrister to Philip Kenny Qc, acting for Shirt, in the High court case.

The case is important, he said, because prior to the Shirt decision, there was a divergent view developing in Australia in the law of negligence as to what was a foreseeable risk of harm or injury".

Also the case remains relevant despite the large body of law that has been handed down in the intervening years.

Justice Michael McHugh, who is due to retire from the High Court bench in November 2005, was the barrister defending the Wyong council in the Shirt case.

Back then he argued that finding a breach of duty was beyond the jury's competence.

In the Koehler case, McHugh didn't mention the Shirt case; but he did in another case, Tame v NSW.

According to Tracey Carver, associate professor of law at Queensland University of Technology, McHugh's comments in the Tame case suggest he was concerned that the undemanding test in Shirt was leading the law of negligence into disrepute by marking it too easy to attribute liability in negligence thus failing to meet community expectations as to the role of the courts in securing what might be thought of as "fair" justice.

High payouts for victims of negligence have been cause of concern for insurers and the courts. In October 2002, Justice David Ipp headed a panel to review the law of negligence. Ipp recommended that only a shift in emphasis is required in the Shirt principle, narrowing the test for foreseeability to "not significant".

This led the NSW government to amend the statutory manifestation of the test from Wyong in its enactment in the Civil Liability Act 2002 (NSW).

Associate professor of law Prue Vines of the University of NSW, points out that although changes to the Civil Liability Act have resulted in the revised formulation for foreseeability these cases have not yet reached the High Court.

The Shirt principle has been criticized quite often, but Vines notes that in most cases reasonable foreseeability is not enough to establish that a duty of care is owed.

"Something else is needed and that something is usually derived from the category of the case which is being considered," she says.

For example, for psychiatric harm it is not just reasonable foreseeability of psychiatric harm; for pure economic loss caused by an act one will also have to prove that the plaintiff was in a specifically foreseeable class of people."

Because Shirt set a relatively wide test for the definition of foreseeability - that which is not far-fetched or fanciful, according to Mason subsequent cases have sought to narrow the definition.

This "weakness" of the test of reasonable foreseeability in Shirt has led other courts to turn to other tests to stop the expansion of the duty of cared definition in negligence proceedings, Vines says.

Carver says that the Cerebos case in itself will not give rise to a challenge to the test of reasonably foreseeability, "particularly since only Callinan seems to directly criticize the test from Wyong, whilst the majority or joint judgment, in this instance, seem happy to accept it".

What the court is doing, says Carver, is

Accepting the Shirt test as long standing and hard to overrule. "Instead of overruling it directly they are trying to apply a more moderating, objective or commonsense approach as to what is reasonable which is consequently more in line with community expectation," she says.

Carver says the High Court in particular in recent years has been concerned that the ambit of the law of negligence should not extend so as to usurp or intrude upon other areas of law, in this instance the contractual allocation of responsibility (in terms of the scope of employment) between the parties.

Associate professor Terry Gygar of Bond University's faculty of law says the Cerebos decision "sent up flares" about the Shirt principle.

"They are saying send us something that is right on point and we will give special leave to appeal it, "he says, "Most would interpret the comments as saying it is time for Wyong (the Shirt principle) to be wound up."

Because the Shirt principle has not been put directly to the High Court, the judges could not comment on it, Gygar says.

"The common law is never fixed and nor should it be," he says. In five years' time, this case [Cerebros] will be forgotten; what will be remembered will be the decision that flows out of it."

Claims against employers might be on the rise, but Freehills partner Barry Sherriff says the Cerebros judgment shows that it is not necessarily foreseeable that someone doing their job will suffer a psychiatric injury.

So the employee agreements and conditions need to be adhered to.

"You can't treat it in a vacuum", he says. There was no duty of care established in the case because it was not foreseeable that the employee, who had signed up to the job description, would then suffer an illness.

Callinan's comments encourage the "the further consideration" of Wyong with the right case, Sherriff says. They have clearly signalled in this and other cases that the practical application of Wyong has produced results which they believe to be inappropriate and too harsh.

"Wyong is right logically but the practical application has led to some harsh outcomes."

Although insurers might have an interest in "winding back" the extremes of the application, Sheriff warns that with rising insurance costs, not everyone is insured.

Stress claims are "the health and safety issue of the 21st century" he says. "This whole areas of psycho-social hazards, stress, fatigue, bullying is a measure of the stress at work. Frankly, living in society is more stressful."

Unlike physical injures, psychological injuries are more idiosyncratic and are affected by numerous factors, Sherriff says.

"What makes it so difficult and challenging unlike physical injury where the dynamics are more readily accessible and identifiable [is that] psychological injures are insidious and chronic rather than acute."

While there is often a direct and obvious link with an employer when a worker is physically injured in the workplace, it can be harder to prove that link in cases of psychological injury, which may also be caused by external factors.

"Being stressed at work could be just as readily from marriage break-up," Sherriff says. "Maybe the courts are now saying, ‘We can't just simply allow the floodgates to open and forget the rules that common law places on these cases'.

"Some would say the court is narrowing; others would say it is reminding us of the limits that might have been overlooked."

Shirt died in 1999, but almost 40 years after he water skied in Tuggerah Lakes.



Study Example: 2. Boating collision on 4th February 1998

This case was chosen because of the complexities of the issues raised across a number of areas of negligence (noted below) and contribuatory factors, including apportionment. Essentially, one might describe this case as "a bit of everything".
TORTS - NEGLIGENCE -- DUTY OF CARE - APPORTIONMENT OF RESPONSIBILTY AND DAMAGES - APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
IN THE SUPREME COURT OF QUEENSLAND

 

PARTIES: TIMOTHY RIGNEY
(plaintiff)
v
ROBERT INGLE BROWNE
(first defendant)
MARK JAMES NELSON
(second defendant)
PROCEEDING: Personal Injury - Liability & Quantum
DELIVERED ON: 25 August 2004
DELIVERED AT: Brisbane
ORDERS: 1. Judgment for the plaintiff against the defendants in the amount of $464,586.34. 2. Each of the defendants is entitled to recover contribution from the other to the extent of 50 per cent of the damages.

[1] The plaintiff was injured in a boating collision on 4 February 1998. He was a passenger in a boat which has been described as a dinghy, but was, in fact, a more substantial vessel than the term might imply. At the time the collision occurred, the plaintiff and the second defendant, Mr Nelson, who, it is admitted, was in possession and charge of the boat, were asleep after a night's fishing. Their dinghy was struck by a speedboat driven by the first defendant, Mr Browne; the plaintiff was thrown into the water and suffered injuries. Liability and quantum are both in issue.

The evidence as to the events of 3-4 February 1998

[2] The plaintiff, Mr Rigney, and the second defendant, Mr Nelson, were work mates and regularly fished together. Mr Nelson had borrowed the boat in which they were fishing overnight on 3 February from his father. It had actually been owned by Mr Rigney until about six weeks prior to the accident, when he sold it to Mr Nelson senior. It was a 14 foot outboard aluminium dinghy with a 40 horse power engine. A photograph shows that it had a full width windscreen at the bow, a sizeable white canopy extending back from the windscreen not quite half way along the boat's length, and a white hull.

[3] The boat had green and red navigation lights on its bow and an anchor light at its stern on the right side, positioned on a pole which stood up from the side of the boat by about 600cm. That light was controlled by a switch on the dash panel on the front of the boat, and ran off a marine battery. According to Mr Keith Nelson, the second defendant's father, he had, since buying the boat, replaced the existing battery with a new marine battery and had checked all the switches and lights on the boat, including the anchor light. They were all working correctly. Other than those lights, Mr Nelson and Mr Rigney had a car headlight with them in the boat, which they used to pick up crab-pot floats. It was connected by clips to the battery, but it was not left on for extended periods.

[4] Mr Rigney and Mr Nelson put the boat into the water at the Runaway Bay Yacht Club at about 4 pm on 3 February. They made their way into the Nerang River and began fishing near the Gold Coast Council Chambers, which are on the southern bank of the river. At about 10 pm they moved their position to moor on the other side of the river, near a park off Sunset Boulevard. That was a regular mooring point; their practice was to line the boat up with a picnic table in the park. According to Mr Rigney, it was a spot regularly used by fishing clubs, but there were no other boats there that night. The boat was moored by putting two anchors in the water, one from the bow and one from the stern. In a statement made some three weeks after the incident Mr Nelson said that it was he who had set the front and back anchor. At trial he accepted that Mr Rigney might have been involved in that process, as indeed did Mr Rigney, but neither had a clear recall. But Mr Nelson said that the decision as to where to moor would have been a joint decision, and Mr Rigney agreed that if he had thought they were not in the right spot he would have said so.

[5] Mr Rigney estimated that the boat was moored about 10 metres out from the river bank, although he said that he had not taken particular note of the boat's position, since he was not in charge of it. Mr Nelson described the position as being lined up with the table in the park and the edge of a jetty which protruded from a house on the downstream side of the park. He estimated that the boat was between 10 and 20 metres out from the bank, but was "not exactly sure". It was parallel with the bank, and pointing downstream. He explained that it was necessary that the boat be at least 5 metres into the stream to avoid the effects of the wash of other vessels hitting the bank.

[6] Mr Nelson estimated the width of the navigable part of the river at the point where the boat was moored at between two and two hundred metres. In his statement soon after the accident, he said that the boat was not in the navigable channel; but in cross-examination he conceded that the water was deep and navigable right up to the bank. In that earlier statement, he recalled turning the navigation lights off and the anchor light on, once they had taken up their new position. In evidence, both he and Mr Rigney laid claim to having turned the light on, although neither was adamant about it, except to the extent that the light was definitely on. Mr Rigney thought that the car headlight was turned on from time to time, its beam pointing directly upwards, when they were at this location; but Mr Nelson said that they had no occasion to use the headlight while moored beside the park, because they were not retrieving crab pots there. The only other sources of lighting were a small light on the dash and a pencil torch which they had with them in the boat.

[7] Once moored, the two went back to fishing. Mr Rigney said that they had a six-pack of full-strength beer between them and they also smoked some cannabis.

Mr Nelson was vague about how much beer had been drunk and could not recall whether or not they had smoked cannabis. In the early hours of the morning, they decided to sleep so as to be refreshed for the drive back to Brisbane. Mr Rigney thought they settled down at about 1.30 or 2 am; Mr Nelson could not remember exactly when the two of them went to sleep, but he guessed that it was at about 3am. Both said that the anchor light was on when they went to sleep.

[8] At about 3.45 am, the first defendant, Mr Browne, set off in his speedboat with his friend, Mr Dickman, from his waterfront property on a canal estate. They moved along the canal at a speed of about three knots before entering the Nerang River. The boat they were travelling in was a 200 horse power four stroke outboard with a fibreglass hull. It was about six metres by five metres in dimension, and was equipped with standard navigational lights. Mr Browne said there was an eight inch platform built into the deck of the boat behind the console, to give the driver height and increase his ability to see over the bow. He and Mr Dickman planned to go offshore marlin fishing, which entailed going down the Nerang River, through the Broadwater and out into the open sea. They passed under the Isle of Capri Bridge travelling at about 25 knots. The signed speed limit was 40 knots. There were navigation markers on the bridge itself, red indicating the port boundary of the channel, and green the starboard side. According to Mr Dickman, the markers were placed so as to direct the boat under the middle of the bridge. The boat was about 50 to 60 metres out into the river going underneath the bridge, and then moved closer to the bank.

[9] Further down river, and past the area where the Nelson boat was moored, there was a yellow flashing light which marked the entrance to a channel. Beyond that again, near the Gold Coast Council Chambers, were red and green beacons which flashed every three seconds. Mr Browne said that he used the beacons to navigate beyond the bridge, intending to steer between them. That would take him round the starboard side of the green beacon; to achieve that, after the bridge he took a course closer to the northern bank, although he agreed that the deepest part of the river in this section was in the middle. Mr Dickman estimated that the green channel marker was only about 40 metres from the bank; in order to ensure that their course took them round it, the boat had moved from a position about 50 metres out, to close to the bank.

[10] There were a number of pontoons or jetties projecting from the northern bank; Mr Dickman estimated that the longest of them was about five to seven metres. A boat tied up at the end of a pontoon might extend its length by another few metres. Mr Browne said that he was travelling on the starboard side of the river, but was not hugging the bank; he was mindful of keeping what he understood to be the required distance of 20 metres from the pontoons, and his course took him nowhere near them. Both he and Mr Dickman maintained that there was no lighting about; they had been travelling in utter darkness. The speedboat had, of course, no equivalent of a car headlight to illuminate what lay ahead. It was not, Mr Dickman said, possible to see anything unless it had its own lighting. Mr Browne said that he was driving the boat at about 25 knots (approximately 46 kilometres per hour) along the river, because that speed gave optimal fuel usage. He saw no other moving vessel. Other than in daylight hours, he had never encountered a moored boat in that area of the river.

[11] At about 4.20 am, the collision occurred. Neither Mr Browne nor Mr Dickman saw any lights on the dinghy; they did not know what they had hit. In the collision, the dinghy was overturned and both occupants were thrown out. Mr Rigney, who had sustained spinal injuries, surfaced beneath the overturned boat. He was unable to extricate himself, and was rescued by Mr Nelson. Mr Browne's boat, which had sustained damage to the outboard motor and port bow, started to take water. He managed to steer it across the river and put it on to a sand bar, where it sank.

[12] Mr Browne estimated that the collision occurred about 800 metres downstream from the Isle of Capri Bridge; Mr Dickman put it at about 300 metres downriver from the bridge. The 1999 boating map tendered supports Mr Browne's estimate. Both said that the point of collision was about 25 metres from the northern bank of the river. According to Mr Dickman, the green beacon was only 40 metres from the bank, and about 50 metres downstream from where the accident occurred; if one took a line between the markers on the Isle of Capri Bridge and the green beacon, the boat was closer to that line than to the northern bank of the river. The boating chart shows the distance from the point of the collision to the green beacon as more like 500 metres; although there was some evidence, from a Mr Duncan, that in early 1998, it was further upstream, possibly within 200 metres of the collision site. It seems unlikely, though, to have been as close as Mr Dickman suggested.

[13] Mr Dickman also suggested that the dinghy was not moored parallel to the bank but rather across the river; a conclusion which he arrived at by reference to the damage sustained. There was no particular expertise identified on his part which would justify that conclusion, and I reject that part of his evidence. There was no other evidence to support a conclusion that the boat shifted its alignment at all during the night.

[14] Mr Browne and Mr Dickman were both assertive witnesses; Mr Nelson and Mr Rigney tended to be more tentative. But there was a fifth witness, the Mr Duncan already mentioned, who was not immediately concerned in the events. He lived in a two-storey riverfront house adjoining and upstream from the park next to which the Nelson boat was moored. The house was set back a metre and a half from the high water line, and had a jetty outside it, which extended between five and eight metres from the bank.

[15] On the evening of 3 February, between 9 and 11 pm, Mr Duncan had looked from a window on the upper story of his house and had seen what he described as a "tinny" moored slightly downstream. There was always, he said, some ambient light about, in the form of light reflecting from the houses on the far bank. He could see some activity going on in the tinny. He was unable now to remember whether there was a fixed light on its stern; he had no recall of anything unusual about the tinny, so there probably was a light of some kind in the boat. Most boats moored further downstream in order to fish, but he estimated that around 10% of them would moor in the vicinity of his house. He thought that the tinny he saw on this night was 20 to 25 metres downstream from the southern boundary of his property, and about 20 to 25 metres off the bank.

[16] In the early hours of the morning, between 2 and 3 am, he got up and again looked out in the direction of the boat. It was difficult to make out, but he could discern it, and it was in the same position. He could see no lights on it, and there appeared to be no activity inside it. He returned to bed and was later woken by a noise (probably of the collision) which made him go again to the window. He looked out, and glimpsed the first defendant's boat as it made its way across the channel. When he ran downstairs, he could see the dinghy upside down, and could, with the benefit of the lights on the far bank, make out items floating in the river.

[17] An astronomical phenomenon certificate tendered in the trial gives some indication of the state of visibility of the time of the collision. According to that certificate, the times on which are said to be accurate within a couple of minutes, "astronomical twilight" which is described as "synonymous with darkness" occurred at 3.54 am. "Nautical twilight", a state in which the "light will have deteriorated badly; general outlines will still be visible, although the horizon probably will not be distinguished; all detailed operations are impossible, and all the brightest stars can be seen", occurred at 4.25 am. Mr Duncan's account of what could be seen immediately after the collision best fits the state of "nautical twilight" described in the certificate; but, of course, the state of the light might have changed from "astronomical twilight" over the preceding minutes.

[18] Mr Duncan said the position of the beacons in the river required vessels to take a line which converged on the bank, in order to stay between the markers. They often came close to his jetty. Most of the traffic passed in an area of the river between the bank and a line about 60 metres out into the river. The width of the navigable channel, in the area of the park, from the bank to the shallow water across the river, was, he agreed, about 100 metres. The tinny was not, he said, "tucked into the shore"; it was in a navigable area of the river, where a lot of boats passed, although it was quieter at night. He was himself in the practice of traversing that section of the river at night at 40 knots, because he was so familiar with it. But there were, he acknowledged, hazards; it was easy to confuse lights on the shore - house and garden lights, street lights or car lights - with river markers or stern lights on vessels.

The plaintiff's contentions

[19] As against the first defendant, the amended statement of claim pleads that he breached his common law duty to operate his speed boat in a safe manner and failed to meet the standards mandated by the Transport Operations (Marine Safety) Regulation 1995. As to the former, the essence of the allegation is that the first defendant drove the speedboat carelessly and too fast, particularly given the state of the light, and failed to keep a proper lookout. (It also pleads res ipsa loquitur, but that notion became irrelevant.) The regulations of the Transport Operations (Marine Safety) Regulation alleged to have been breached were regs 95(1) and 96. The first prohibits the operating of a ship (including a personal watercraft) at a speed of more than six knots in waters within 30 metres of a moored ship or of a jetty where a speed limit of six knots or lower has not been gazetted. ("Ship" is defined in s 10 of the Transport Operations Marine Safety Act 1994 in terms sufficiently broad to include a dinghy). The second requires that a ship not be operated at a speed at which its wash is reasonably capable of causing "a marine incident".

[20] The first defendant maintained that reg 95 did not apply, because it was concerned only with speed limits under six knots. I do not think that is correct; rather it applies where the gazetted speed limit is not six knots or lower. However, no submission was made in respect of this breach in the closing address of the plaintiff's counsel; and a statement by the first defendant's counsel to the effect that the point had been conceded was not disputed. Nor did counsel for the second defendant (who had relied on the plaintiff's allegations in the statement of claim) seek to rely on the regulation. That being the case, I do not think I can properly make any finding of breach of statutory duty in this regard. The first defendant was on stronger ground in asserting that reg 96 was irrelevant, since this was a case of direct collision, and there is no suggestion that the speedboat's wash had anything to do with it. Indeed, the regulation was not the subject of any submission.

[21] Instead, the plaintiff referred in submissions to a number of alleged breaches of the International Regulations for Preventing Collisions at Sea 1972 (Cth) (the Collision Regulations). Those regulations appear as a schedule to the Navigation Act 1912, and are given local effect by reg 93 of the Transport Operations (Marine Safety) Regulation. A failure to comply with the Collision Regulations amounted, counsel for the plaintiff said, to a breach of s 43(1) of the Transport Operations (Marine Safety) Act, as a breach of an obligation not to cause a vessel to be operated unsafely. The standards imposed by the Collision Regulations reflected the common law duty of care, and a failure to meet them was properly to be regarded as negligence.

[22] The plaintiff alleged that the first defendant had breached r 5 of the Collision Regulations, which required him to keep a proper lookout "so as to make a full appraisal of the situation and of the risk of collision"; r 6, which required him to proceed at a safe speed in order to avoid collision, taking into account factors including visibility; r 7, which required him to use all available means to determine if there were a risk of collision, and prescribed that if any doubt existed the risk was to be determined to exist; and r 8, which required him to take action to avoid a collision.

[23] As against the second defendant, the particulars of negligence contained in the amended statement of claim were, summarising once more, the mooring of the dinghy mid-channel, the failure to activate the anchor light and the failure to keep any proper lookout. Again, a pleading of res ipsa loquitur came to nothing. Breaches of the Transport Operations (Marine Safety) Regulation were pleaded, particularised as a failure to activate "the signalling devices for recreational ships on water at night" and a failure "to instruct or otherwise require the Plaintiff to wear a life jacket". The two regulations cited, reg 13 and reg 21, in fact contain neither requirement. Not surprisingly, the plaintiff did not rely on those alleged breaches. Instead he again took the position that there was a breach of a common law duty of care, which could be illustrated by reference to the Collision Regulations.

[24] As master of the smaller boat, Mr Nelson had command or charge of the vessel. The plaintiff's first position was that the anchor light was on at the relevant time; but if it were not, responsibility lay with Mr Nelson. If the anchor light were not operating, the boat was not safe; and that was a breach of s 41(1) of the Transport Operations (Marine Safety) Act, which required that a vessel not be operated unless it was safe. A failure to have an operating light would also be a breach of r 30 of the Collision Regulations, which prescribed the display, on a small vessel at anchor, of "an all-round white light where it can best be seen". If the light had failed, the second defendant was still in breach of the requirement of r 30 that it be displayed, and of the s 41 requirement that the vessel be safe. If the boat were anchored in an unsafe position, responsibility similarly fell to the second defendant, as having set the anchors.

The first defendant's contentions

[25] It was argued for the first defendant, Mr Browne, that he should not be held responsible at all. The dinghy had been moored unlit in a navigable area of the river at the darkest time of the night. Counsel for the first defendant referred to this statement, taken from Australian Maritime Law.

"Fishing vessels are not to impede the passage of any other vessel navigating within a narrow channel."

However, this, I think, is a reference to r 9(c) of the Collision Regulations, and has no application here: the dinghy, having no fishing apparatus to restrict its manoeuvrability, was not a "vessel engaged in fishing" for the purposes of the Collision Regulations. (As to what is a "narrow channel", the Collision Regulations contain no definition. The learned authors of Maritime Law in Australia adopt the suggestion from The Australasian Steam Navigation Co v Smith[ "that it means any waterway used as a passage for vessels and so narrow that navigation would be better served by two approaching ships taking opposite sides of it". I accept that the Nerang River is a narrow channel.)

[26] As counsel for the first defendant pointed out, r 9 of the Collision Regulations also required a vessel proceeding along a narrow channel to keep as near as was safe and practical to the outer limit of the channel on the starboard side. In order to comply with r 9, and in order to navigate between the beacons, it was submitted, the first defendant had no option but to steer the boat towards the north bank. He had kept a proper lookout and had travelled at no more than half the speed limit. Nothing suggested that, had the first defendant's boat been travelling any slower, it would have been possible for him to see the dinghy or avoid it.

[27] Each of the defendants had issued a notice claiming contribution against the other, each adopting the plaintiff's allegations of negligence and breach of statutory duty as against the other. The real cause of collision, the first defendant said, was the failure of the second defendant's boat to display an operating navigation light. The second defendant also ought to have moored closer to the northern bank, or alternatively, to have anchored on the other side of the river, in shallow water. Regulation 181 of the Transport Operations (Marine Safety) Regulation prohibited the mooring of a ship in waters where it would endanger marinesafety. (And, it may also be noted, r 9 of the Collision Regulations requires vessels to avoid anchoring in a narrow channel "if the circumstances of the case admit.")

[28] Liability ought to be shared, it was submitted, between the second defendant and the plaintiff. The latter had participated in the decision where to moor, and had opted to sleep in an unlit boat. The defence had also pleaded as contributory negligence the plaintiff's failure to wear a flotation device, but that allegation was not maintained.

The second defendant's contentions

[29] For the second defendant, it was said that the collision occurred on the edge of navigable water, in an area which would not be navigated by a reasonable vessel skipper at night, given its proximity to the bank and the pontoons. There was an expanse of water on the port side of the vessel through which it could equally have travelled. Mr Browne had travelled at excessive speed and had failed to keep a proper lookout: Mr Duncan's evidence established that the dinghy was visible, lit or unlit. If it were found, however, that the dinghy was moored too far out into the channel, or that the navigation light was not turned on, a finding of contributory negligence in the order of 50 per cent ought to be made against the plaintiff. He was familiar with the boat, and with the location in which it was moored, and was in a position, given his relationship with Mr Nelson, to ensure in the interests of his own safety that both those matters were rectified. Again, although failure to wear a flotation device was pleaded against the plaintiff, it was not relied on.

Findings

[30] On the basis that Mr Nelson's recollection as given in his statement soon after the accident is much more likely to have been accurate than the rather vague recall he and Mr Rigney could muster at trial, I think it probable that he set both anchors. I do not set much store by his and Mr Rigney's approximations of the distance between the dinghy and the bank. Neither made a very confident estimate; Mr Rigney was at some pains to explain that he did not take great notice of where they were, because he was not in charge of the boat. And although Mr Browne and Mr Dickman were more assured in their estimate that the dinghy was 25 metres from the northern bank of the river, given the state of darkness and the completely unexpected nature of the collision, I have some reservations about their capacity to make any precise judgement in that regard.

[31] The witness whose evidence I think likely to be the most reliable on this point is Mr Duncan. I conclude, given the absence of evidence as to any other boat being moored in the vicinity, that the vessel he saw on both occasions when he looked out from his house was the boat containing Mr Rigney and Mr Nelson. He gave as his best estimate that it was moored 20 to 25 metres out from the bank. While not accepting that Mr Nelson had any very clear idea of the distance from the bank, I do accept that he moored the boat by reference to (but not in line with) the pontoon downstream, which was unlikely to have been more than 12 metres from the bank. It is probable, therefore, that the relevant distance was at the lower end of Mr Duncan's range. But I also accept Mr Duncan's evidence to the effect that it was far enough out to be in an area regularly used by vessels travelling downstream.

[32] Consistent with the last finding, and accepting the evidence of the first defendant and Mr Dickman on the point, I find that the course adopted by the speedboat, following and close into the curve of the bank did not depart from ordinary patterns of navigation along that stretch of the river, and was appropriate in order to steer the vessel between the downstream markers. In addition, it complied with the requirement in r 9 of the Collision Regulations, of keeping as near as was safe and practical to the starboard side of the channel.

[33] I find on the balance of probabilities that the dinghy's navigation light was turned on when the boat was first moored near the northern bank. I do not think there is any real reason to reject the evidence of Mr Rigney and Mr Browne to that effect, and it is supported, albeit faintly, by what Mr Duncan has to say. The suggestion that they were so tired and intoxicated they must have forgotten to turn it on is not compelling. They moored at the park at about 10 pm, before fatigue was likely to have set in. There is nothing to show that they drank more than the six pack between them that Mr Rigney alluded to, nor that any cannabis consumed had any significant effect on their functioning. It was a dark night; they were likely to notice the absence of the light if they omitted to turn it on.

[34] Mr Duncan, looking down from his house, was looking at the boat from behind. There was nothing unusual about it on his first sighting of it, he said; that was in contrast to his later, positive observation of the boat as unlit. He could recall the existence of some light in the boat at that earlier stage. It was probably not the headlight. On Mr Nelson's evidence, it was not turned on at all, as they were not retrieving crab pots. If, to the contrary, Mr Rigney's account that it was used occasionally is accepted, it still seems unlikely that Mr Duncan would have regarded brief instances of a beam pointing heavenward as rendering the state of the boat unremarkable. The dash light and the pencil torch were not of dimensions likely to attract his notice. His evidence that he saw nothing amiss when he first saw the boat is consistent with the anchor light's having been turned on when it was first moored.

[35] It is almost certain that the two men in the boat would have noticed any failure in the light, and I accept that it was functioning when they settled down to sleep. But I also accept Mr Duncan's evidence, consistent with that of the first defendant and Mr Dickman, that there was no light operating on the boat in the early hours of the morning. The inference I draw is that some component of the light or its circuitry failed after Mr Rigney and Mr Nelson went to sleep; most probably the bulb in the light itself, given the recent upgrading of the battery and checking of the switches.

Conclusions

[36] The collision, I find, was the product of three factors: the unsafe positioning of the dinghy in the navigation channel; the failure of its navigation light; and the excessive speed of the motor boat in the prevailing conditions. The second of those factors, while operative in causing the collision, cannot be attributed to negligence on the part of any party. Mr Nelson borrowed the boat from his father after the latter had replaced the battery and checked that the electrical circuits were operating; I do not consider that anything more was required of him in terms of the boat's lighting for the purposes of the fishing trip. The fact that the boat was, for some unknown period, without a functioning anchor light might have constituted a breach of r 30 of the Collision Regulations; but I do not think in this instance that such a breach evidences negligence on Mr Nelson's part.

[37] But Mr Nelson's failure to change the mooring of the boat, leaving it substantially out into the stream, at a time when he and Mr Rigney proposed to go to sleep, with nothing but the navigation light to protect them against collision, was a failure to take reasonable care. The configuration of beacons in the river made it logical that boats travelling downstream would come closer into shore in that area. To trust to the navigation light alone as a means of protection was foolhardy. The possibility of its failure existed. Even had it been operating, there was a real risk that it would not be seen; there, was, for example, the prospect that the master of a vessel travelling downstream would confuse it with other lights in the distance. There were easy alternatives: the boat could have been moved as close as five metres from the bank, or brought at least within the shelter of the up- and down- river jetties, or moved over to the other side of the river.

[38] The other major cause of the accident was the speed of the first defendant. I am satisfied that the course adopted was proper, provided appropriate allowance was made for moored boats, jetties and other possible obstacles. There was nothing in the evidence to suggest that Mr Browne and Mr Dickman were not keeping a proper lookout. But the speed at which Mr Browne drove the boat was not reasonable. The Nerang River was not some isolated, little-used stream. It is clear from the evidence as to the pontoons and jetties along the river that there were plenty of boat owners in the area; and there were people regularly fishing from boats in the river. On Mr Browne's own case, it was so dark he could not see ahead of him; and, as I have found, there was the risk of confusion of shore lights with the stern lights of other vessels in the river. There was every reason to proceed with considerable caution. That need for caution is reflected by the existence of reg 95 of the Transport Operations (Marine Safety) Regulation which curtails speed within 30 metres of jetties and moored boats to six knots. There was every reason to expect that there would be boats moored in this stretch of the river at jetties, or anchored in the stream with not much in the way of lighting. Prudence dictated a very careful passage down this part of the river, particularly where the vessel was coming within 20 to 25 metres of the shore. To drive in darkness at 25 knots, with, on Mr Browne's account, no capacity to make out objects ahead was reckless. It was feasible for him to travel at a much lower speed; indeed, he had travelled at only three knots in the canal, before entering the river.

[39] In fact it was not impossible to make out the existence of the dinghy; as Mr Duncan observed, there was some ambient light reflected from the houses across the river. Applying Pythagoras's theorem, Mr Duncan, from a distance of between 30 and 35 metres, depending on whether the boat was 20 or 25 metres down and off the bank from his house, was able to make out the dinghy in the earlier hours of the morning looking down from his window, and again, from the shore, immediately after the accident. It is reasonable to suppose that the dinghy's white hull would have been visible from at least a similar distance to a vessel travelling on the water. But at a speed of 25 knots, visibility over that distance (30 to 35 metres) would last for a period of only 2.3-2.7 seconds. If, on the other hand, the vessel were moving at 10 knots, a period of 5.8-6.8 seconds would elapse, giving a real prospect of turning to avoid the collision. I conclude, therefore, that the lower speed would not only have been prudent but that it would have enabled avoidance of the collision. That a lower speed was appropriate in those circumstances is clearly demonstrated by the existence of reg 95.

Apportionment of liability

[40] Mr Rigney did, I think, contribute to his own injury to a minor extent, in failing to ensure that the boat was safely moored before he and Mr Nelson went to sleep. While I do not think it is of any significance for these purposes that he had previously owned the boat, he was someone with a good deal of boating experience; he was familiar with the location; and he was on such terms with Mr Nelson as to be heeded if he proposed a change. It was entirely in his power to suggest that the boat be re-moored. As I have said, to settle down to sleep, with no greater safeguard than the navigation light, when the boat was in an area of the river used by passing craft, was imprudent. However, the unsafe mooring of the boat was only one of the factors I have identified as resulting in the collision; and responsibility for it did not rest primarily on Mr Rigney. Unlike Mr Nelson and Mr Brown, he was not in charge of the boat and did not assume the statutory and common law responsibilities of a vessel master. And he did not actively anchor the boat in an unsafe place, as Mr Nelson did; his failure was passive, in doing nothing to correct the situation. In all the circumstances, his damages ought to be reduced, but only to the extent of 10 per cent as reflecting his share of the responsibility for his injuries.

Contribution

[41] As to the respective liability of the first and second defendants, I consider it appropriate that they contribute equally to the amount of the judgment obtained by the plaintiff. Each occupied the same position of responsibility in relation to his boat. Each was negligent in a significant aspect of its operation - unsafe mooring in the case of Mr Nelson, operating at excessive speed in the case of Mr Browne - which was a substantial cause of the accident. Their culpability is, I think, at a similar level. Each should be entitled to recover from the other contribution to the extent of 50 per cent of the amount of the judgment.

Pain & suffering

[42] In evidence, Mr Rigney described his experience on the capsize of the dinghy. Although he did not think that he had been completely knocked out, he was confused and disoriented, and found himself unable to coordinate his limbs so as to get out from under the boat. He swallowed a good deal of river water before Mr Nolan retrieved him and got him to shore. He was taken by ambulance to the Intensive Care Unit at the Gold Coast Hospital; he described his sensations at this stage as a feeling of numbness, with tingling in his arms and legs. On his admission there, he had a Glasgow coma score of 15, his condition being described as "awake, alert and co-operative". He was suffering from pulmonary congestion and had sustained injury to the cervical spine: a fractured C4/5 facet joint and subluxation of C4. That was treated by anterior cervical fusion on 6 February 1998, using a plate, bone graft and screws. Mr Rigney was discharged from hospital on 9 February. When he was last seen for review at the hospital on 9 April 1998, his left arm power was improved, but he was still experiencing some pins and needles.

[43] Mr Rigney's spinal problems have resolved reasonably well, although there remains a significant residual disability, largely as the result of the loss of movement caused by the fusion. He said in evidence that his neck became stiff and uncomfortable when it was held in a fixed position, particularly extended, for any length of time. He does not presently use any anti-inflammatories or any prescription analgesics, although he may have an occasional Panadol. The sensation of pins and needles in his arm had resolved by the end of 1999.

[44] Mr Rigney has been assessed for medico-legal purposes by two orthopaedic surgeons, Dr White (in January 2000 and again in April 2004) and Dr Nutting (in January 2001) and also by a neurologist, Dr Landy (in February 2001). Dr Nutting and Dr White were agreed that there was radiological evidence of early degenerative change at the levels of the cervical spine adjacent to the fracture site at C4/5. Both expected that degeneration would continue, because of the additional physical stress the fusion placed on the adjoining levels; but that further degeneration was unlikely to have any effect on the plaintiff's range of movement, which was already, of course, decreased by the fusion. Dr White thought it possible that Mr Rigney might need further surgery should he develop pain as a result of nerve root pressure around the adjoining discs. He conceded that further investigations would be necessary before any firm view could be reached on the question and, he added, it was impossible to put any time on when further surgery might be needed. Dr Nutting considered the prospect of surgery unlikely.

[45] There was no great divergence among the specialists as to the level of impairment resulting from the spinal damage. Dr White assessed the plaintiff as having suffered a 20 per cent whole person impairment as a consequence of the injuries to his cervical spine. Dr Nutting thought that in addition to the degenerative change and loss of movement in the neck there was some rotator cuff pathology on the left with a partial supraspinatus tear, and there was also some persistent discomfort and weakness associated with arm function for which allowance should be made. Adding all those features together his assessment of whole person impairment was, like Dr White's, some 20 per cent. Dr Landy, on his examination of Mr Rigney, did not find any evidence of arm or leg weakness but there were altered reflexes suggestive of damage to the spinal cord at C4/5. He assessed, from a neurological perspective, a 15 per cent whole person impairment.

[46] Mr Rigney was 41 years of age when he was injured, and was married with two sons aged about five and eight respectively. Before the accident he had been suffering from health problems. He had had chronic sinus problems for approximately seven years. In 1997 he was treated for depression, first by his general practitioner, and later by a psychiatrist, Dr Rosser. The report from Dr Rosser which was tendered in evidence says nothing as to the apparent causes of Mr Rigney's depression, but Mr Rigney attributed it to three factors: his elder son's behavioural problems, eventually diagnosed as attention deficit hyperactivity disorder; the ill-effects of working night shifts; and his chronic sinus problems. Dr Rosser saw Mr Rigney five times between 25 June 1997 and 16 December 1997. On the last of those occasions he describes Mr Rigney as "very well"; he had been taking a daily dose of the anti-depressant paroxetine (marketed under the trade name "Aropax"), and was to be reviewed four months later.

[47] In the event, Dr Rosser next saw Mr Rigney on 11 February 1998, when the latter described the accident and was in a state of some agitation. The consultations continued; Mr Rigney described flashbacks, anxiety, disturbed sleep and concentration. Dr Rosser diagnosed post-traumatic stress disorder. He last saw Mr Rigney on 10 December 1999, when he was feeling well, no longer depressed, with his anxiety about the accident "minimal". He was not, Dr Rosser thought, having any problem at that time with substance abuse.

[48] Mr Rigney said that before the accident he drank about a dozen beers a week in stubby form and smoked three or four bongs of cannabis on most days. His consumption was heavier on days off from work. In the aftermath of the accident, he said, he was "an absolute mess": his sleep was erratic, he suffered from nightmares and his relationship with his wife and sons was dramatically impaired. For a period he had been too anxious to drive a car. His consumption of cannabis increased to six to eight bongs per day and his alcohol consumption to between eight and ten stubbies per day. But after moving to northern New South Wales in 1999, he had reduced his consumption of both forms of drug; now he drank sometimes up to a dozen stubbies of beer a week, but his cannabis use was predominantly smoking at the weekend.

[48] Mr Rigney said that before the accident he drank about a dozen beers a week in stubby form and smoked three or four bongs of cannabis on most days. His consumption was heavier on days off from work. In the aftermath of the accident, he said, he was "an absolute mess": his sleep was erratic, he suffered from nightmares and his relationship with his wife and sons was dramatically impaired. For a period he had been too anxious to drive a car. His consumption of cannabis increased to six to eight bongs per day and his alcohol consumption to between eight and ten stubbies per day. But after moving to northern New South Wales in 1999, he had reduced his consumption of both forms of drug; now he drank sometimes up to a dozen stubbies of beer a week, but his cannabis use was predominantly smoking at the weekend.

[49] Mr Rigney was interviewed for medico-legal purposes by two psychiatrists, Dr Peter Mulholland and Dr Martin Nothling. Dr Mulholland interviewed Mr Rigney in March 2000. At that time he was continuing on a daily dose of Aropax. He reported drinking a six-pack of beer a night and using cannabis four or five times a day. Dr Mulholland considered that Mr Rigney's cannabis use was likely to continue to reduce his ability to cope with stress. As to the future, cannabis and alcohol abuse were the factors likely to determine Mr Rigney's long term psychiatric outlook and whether he was going to be able to work again. By the time Dr Nothling saw Mr Rigney, in April 2001, Mr Rigney had ceased taking Aropax. He had reduced his alcohol consumption to about two stubbies per day and his cannabis use to one cone every two or three days.

[50] Dr Mulholland considered that Mr Rigney's post traumatic stress disorder had largely settled by the time he saw him, although some mild features of the condition were likely to recur from time to time; for example, re-imagining the experience. Any effects were likely to be insignificant in terms of affecting Mr Rigney's day to day functioning. He assessed a five per cent whole body impairment based on those residual features. Dr Nothling accepted that Mr Rigney probably did suffer a post traumatic stress disorder for between six and twelve months after the accident, and conceded that there was some risk that a person who was given to substance abuse would increase his usage under the effects of such a disorder. While he did not consider Mr Rigney to suffer from any psychiatric disorder at the time of his interview, he accepted that some symptoms of post traumatic stress disorder might persist to some degree, and was not really at odds with Dr Mulholland so far as that was concerned.

[51] One of the matters at issue in respect of quantum was whether the plaintiff had suffered a brain injury in the accident, leaving him with long term cognitive deficits. Neither he nor his wife, Mrs Lynn Rigney, who gave evidence, claimed to have noticed any particular cognitive impairment, but he had undergone psychometric testing by Dr Maureen Field and Dr Lucille Douglas, both psychologists experienced in such assessments. Dr Field, who tested Mr Rigney in November 2000, found that there was a significant difference between his verbal and performance scale IQs, which were respectively average and in the low average range; she considered that the latter result probably represented a lowering of ability, since his predicted pre-morbid full scale IQ was average. She found deficiencies in visuo-spatial reasoning and analysis, memory and learning and information processing. The visuo-spatial deficits might be the product of head injury in the accident. The learning and memory deficits were consistent with cerebral anoxia after near-drowning, although heavy alcohol use might also be responsible for some degree of loss; the changes could, she said, be the result of near drowning super-imposed on a pre-existing mild weakness.

[52] Dr Douglas administered her tests some six months later. She found evidence of reduced attention and concentration, but concluded that Mr Rigney's overall intellectual memory, verbal and visual abilities fell within expected limits. It was not possible to determine a meaningful pre-morbid IQ, and it was entirely possible that the difference between verbal and visuo-spatial abilities simply reflected Mr Rigney's greater strength in the former. There was some variability in his performance on visual information and executive functioning tasks, which was more suggestive of substance abuse than traumatic brain injury; and there was actual deterioration in his performance on some of those tasks as between Dr Field's testing and her own assessment which was not consistent with brain injury being a factor. On the other hand, there was some improvement in his performance on memory testing, which was inconsistent with brain injury, and was likely to be the product of a reduction in alcohol consumption. Generally she considered his intellectual memory and verbal abilities to be within expected limits.

[53] Dr Landy found no evidence of cognitive impairment in his examination of Mr Rigney, and an electro-encephalogram he conducted had revealed no abnormality. There was nothing in a CT scan carried out on the day of the accident indicating underlying brain injury. The facts that Mr Rigney was conscious after the accident, was able to give a history of it and had a normal Glasgow coma scale score, militated, Dr Landy said, against any conclusion of residual brain damage. Any slowness in information processing might well be attributable to consumption of alcohol and marijuana.

[54] Both Dr Mulholland and Dr Nothling considered that the deterioration in performance on executive functioning and speed of information processing as between tests was inconsistent with traumatic or hypoxic brain injury. And, like Dr Landy, Dr Nothling did not think that the level of consciousness demonstrated by Mr Rigney at the time of the accident was consistent with brain injury.

[55] The evidence as to the event itself, the results of testing, and the expert opinion on both, is compellingly against Mr Rigney having suffered any brain injury in the incident. I accept, however, that, he suffered from post-traumatic stress disorder which for a period of approximately 12 months had a profound effect on his ability to function day to day, and in turn increased his reliance on cannabis and alcohol. But Mr Rigney's general well-being seems to have improved considerably since his move to northern New South Wales. Probably the most significant of his lasting problems is the reduction in his neck movement resulting from the fusion.

[56] In the circumstances, I consider that an award of $60,000 for pain and suffering and loss of amenities is appropriate. Interest on two-thirds of that amount for the 6.5 years to date (since it seems that Mr Rigney's difficulties were predominantly experienced in that period) at 2 per cent would give a further $5,200.

Economic loss and loss of superannuation benefits

[57] Mr Rigney left school after completing year 10 and attempted a plumbing apprenticeship, which he did not complete. He had worked at a number of unskilled jobs - farm hand, factory hand and labourer were among them - until 1990, when he was employed by Australia Post as a mail sorter. He was on annual leave from that job at the time of the accident. He worked night shift, from 8pm until 3:45am, at Australia Post, because it entitled him to a 30% loading on his pay. The arrangement was that he could nominate the shift of his choice but then had to remain in it for 12 months before making another election. Mr Rigney said that he had intended to work at Australia Post until retirement at 65.

[58] After the accident, Mr Rigney was off work for some 8 months. A couple of weeks after his return, he underwent surgery which rectified his sinus problems. After that procedure he was off work for about 6 weeks and then attempted to return. He found he was unable to cope with the work. On the advice of Dr Rosser and Dr Castrisos, an Australia Post medical officer, he was retired from Australia Post on incapacity grounds from 27 November 1998. Dr Rosser's view as to Mr Rigney's incapacity seems to have been based on his difficulties with concentration and mood. However, Mr Rigney said that he also experienced some physical difficulty with the work: the sorting job required him to sit for a couple of hours at a time reaching upwards to place letters into apertures in a frame, and that caused him considerable discomfort.

[59] On retirement from Australia Post Mr Rigney received a disability pension. About six months later he and his family moved to live at Bogangar in northern New South Wales to be closer to his parents and to have the benefit of their support. He made a number of unsuccessful applications for employment in the Tweed area. Meanwhile, he undertook some voluntary work at his sons' school, which led to two weeks paid employment between 28 March 2001 and 11 May 2001. Later, with the assistance of the Commonwealth Rehabilitation Service, he obtained voluntary work over a period of about 12 months in a nursing home at Kingscliff, doing 17 hours per week. That in turn led to his beginning paid work in March 2003 with the George Ferros Memorial Hostel, dividing his time between an aged care hostel at Byron Bay and a nursing home at Bangalow. His position, which continues, is permanent part time: he does 5 days work a fortnight, two days at one institution in one week and 3 days at the other institution in the following week. He works as a general handyman, undertaking general maintenance and doing some light cleaning and gardening. He said in evidence that he did not think he could increase his working hours, because he found the combination of working and driving exhausting. I note, however, that he informed Ms Coles, an occupational therapist who interviewed him in October 2003, that he had worked 36 hour weeks for a seven week stretch, and "would like to get six to eight days per fortnight of seven and a half hour shifts".

[60] Dr White described Mr Rigney as "permanently unfit for work involving heavy physical labour or duties necessitating maintenance of the head and neck in fixed positions for extended periods of time"; by age 55, he would not be capable of carrying out work requiring "significant physical input". Although whether Mr Rigney could work beyond age 55 was an "educated guess", it would, he said, be "medically fairly surprising" if he were able to work to a retiring age of 65. Dr Nutting saw no difficulty with Mr Rigney performing light sedentary work in full time employment. In his report, he described Mr Rigney's capacity to undertake employment as "minimally affected by his neck and shoulder function".

[61] The major issue so far as economic loss was concerned was whether Mr Rigney would have retained his job at Australia Post in the absence of the accident. The defendants contended that, given his pre-existing depression, his difficulties coping with the work, and his heavy consumption of cannabis, he would not.

[62] Mr Rigney said that he had used cannabis in varying amounts for the eight years he was employed by Australia Post. His alcohol consumption had also been generally consistent over that period; but no concern had ever been raised with him about his work performance in connection with either alcohol or cannabis. He conceded that he found shift work problematic: "It was a struggle with the combination of when I arrived home ... just after 5 am in the morning and things and all my family were getting up to start their day." But, he said, it was necessary that he remain working shifts to earn an income sufficient to allow his wife to stay at home bringing up the children. Mrs Rigney said that she had envisaged returning to work when her younger son (seven at the time of the accident) began high school.

[63] Mr Rigney said that although his struggle with night shifts had contributed to his depression prior to the accident, other contributing factors had been resolved: his son had been diagnosed as suffering from attention deficit hyperactivity disorder and placed on medication, which improved the situation; and his chronic sinus problems were cured by surgery.

[64] It seems to me most probable that Mr Rigney would have continued at Australia Post but for the accident. He had worked there for eight years, and there was no suggestion that his cannabis or alcohol use had drawn adverse attention from management. His depression, on the evidence of Dr Rosser's report, was improving shortly prior to the accident. It is unlikely he would have given up the steady employment he had at Australia Post in the absence of an intervening event such as the accident; but I think it likely that, as soon as it was financially feasible, he would have abandoned night shift. It is clear that his dislike of it was considerable, and it affected his capacity to cope. It is probable that around the beginning of 2005, when the younger boy, Ryan, may be expected to commence the equivalent of grade eight, Mrs Rigney would have sought part-time employment, making it financially possible for her husband to give up night shifts.

[65] However, while I consider it probable that Mr Rigney would have remained with Australia Post, I doubt that he would have stayed in the work force to age 65. His significant level of cannabis and alcohol use was, according to the research cited by Dr Nothling, likely to lead to worsening memory and attention impairment, and augured poorly for his motivation to keep working. I think it more realistic to proceed on the basis of retirement, had the accident not occurred, at 60.

[66] Turning to Mr Rigney's employment situation now, I accept that he is precluded from heavier work, although he can manage the lighter activities he now performs as a handyman. Given the prospect of advancing degeneration which may well produce increasing pain in his neck, it is reasonable to suppose that he will not work past age 55. But it does seem to me that he is at present underemployed and might well be able to work more hours. Where currently he works 37 1/2 hours per fortnight at $13.83 an hour, there seems to me a real prospect that of enlarging those to 50 or 60 hours. That, together with the chance that his symptoms may not reach a level compelling early retirement, seems to me a contingency which must at least be taken into account.

[67] Mr Thompson, a forensic accountant who has looked at Mr Rigney's wages records, has calculated Mr Rigney's past economic loss to 24 May 2004 at $171,268. A further 12 weeks since trial would add another $4,376.52. Making a very modest allowance for contingencies - the prospect, for example, that Mr Rigney's cannabis and alcohol use by this time might have caused him difficulties in the workplace - I propose to allow an amount of $150,000 for past economic loss. There was a social security refund in the amount of $32,122. Interest on the balance of $117,878 at five per cent for the 5.7 years since he lost his employment on 4 December 1998 gives another $33,595.23. Allowing seven per cent for loss of past superannuation benefits gives $10,500.

[68] For the purpose of assessing future economic loss, I accept as a base Mr Thompson's calculation of a net loss of $364.71 per week between Mr Rigney's present employment and what he might have earned at Australia Post. I apply that figure to March 2005, by when I think it probable that Mr Rigney would have ceased night shift. I have been provided with an average income figure for postal sorters of $580 nett per week taken from the Australia Bureau of Statistics Job Market Survey. Using that figure as a reasonable representation of what Mr Rigney might expect to earn working regular shifts, he would incur a loss until his expected retirement from his present employment, in March 2012, of $265.12 per week. Thereafter the basis of calculation should be the figure of $580 net per week until his notional date of retirement from Australia Post at age 60 in March 2017. Those figures would give a total loss of $257,515.68.

[69] There are specific contingencies for which I think allowance must be made; the prospects that Mr Rigney is able to undertake more hours in the next few years than he is presently working, that he might in fact be able to work to 60, and that his employment at Australia Post might have come to an end prematurely given his pre-existing problems. Against those, there is the prospect that he will lose his present employment and find himself, at some disadvantage, in the open labour market. With those matters in mind, I propose to discount by a little more than 15 per cent and allow a rounded off figure of $210,000 for future economic loss. Loss of future superannuation benefits at nine per cent gives another $18,900.

Griffiths v Kerkemeyer damages

[70] Mr Rigney's evidence was to the effect that he could presently undertake all the activities he might previously have engaged in around the house, but would now do them at his own pace. His wife had carried out a recent task of painting their sons bedrooms. Mrs Rigney estimated in the first 2.5 years after the accident she would have spent an extra 3.5 hours per week performing work around the house, and after that 2 hours continuing, because her husband was no longer able to engage in heavier tasks. She conceded under cross-examination, however, that she would have done most of the domestic activities such as laundry, bed-making and vacuuming before the accident. The only activities she specified as ones he could not perform were painting ceilings and removing cobwebs.

[71] Given Mr Rigney's own evidence as to his level of cannabis and alcohol use and given also the fact that Ms Rigney was not employed, I think it improbable that Mr Rigney's contribution to domestic tasks pre-accident was very great. I accept that for the first 12 months after the accident he would have needed a significant level of assistance. I am prepared to allow three hours per week for that period; that would give an amount of $1,872 at the agreed rate of $12 per hour. For the balance of the period to date, I allow an hour per week, which adds $3,432, giving a total of $5,304. Interest at 5 per cent would give another $1723.80. For the future I think the level of assistance needed is likely to be insignificant, and I allow a global figure of $5,000.

Special damages

[72] Special damages were agreed at $12,902.45. $3,327.90 of that amount seems to have been incurred as out-of-pocket expenses; interest on that amount at 5 per cnet adds $1081.57.

[73] It seems improbable, given Mr Rigney's abstention for some time now from the use of analgesics, that there will be much in the way of future pharmaceutical expenses to be incurred. Surgery is nothing more than a slight possibility. I will allow a global figure of $2,000 for future medicals.

Award of damages

[74] In accordance with what I have set out above, I award damages as follows

Description $
Pain and Suffering and loss of amenities 60,000.00
Interest at 2 per cent per annum on $40,000 for 6.5 years 5,200.00
Past loss of wages 150,000.00
Past loss of superannuation contribution at 7 per cent of award 10,500.00
Loss of future earning capacity 210,000.00
Loss of future superannuation contributions at 9 per cent 18,900.00
Past care 5,304.00
Interest at 5 per cent 1723.80
Future care 5,000.00
Future medical expenses 2,000.00
Special damages 12,902.45
Interest at 5 per cent 1081.57
$516,207.05
Less 10 per cent contributory negligence TOTAL: $464,586.34

Orders

[75] I give judgment for the plaintiff against the defendants in the amount of $464,586.34. Each of the defendants is entitled to recover contribution from the other to the extent of 50 per cent of the damages. I will hear the parties as to costs.

International Regulations for Preventing Collisions at Sea 1972 (Cth), r 5, r 6, r 7, r 8, r 9, r 30, r 41 Navigation Act 1912 (Cth)
Transport Operations Marine Safety Act 1994 (Qld), s 10, s 41, s 43
Transport Operations (Marine Safety) Regulation 1995 (Qld), reg 13, reg 21, reg 93, reg 95, reg 96, reg 181
The Australasian Steam Navigation Co v Smith (1886) 7 NSWR 207, applied

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