Supreme Court New South Wales

• Medium Neutral Citation: Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727
• Hearing dates: 27-30 August, 3-6 & 10-12 September 2012, written submissions 19 & 28 September, and 5 October 2012
• Decision date: 07 June 2013
• Jurisdiction: Common Law
• Before: Beech-Jones J

Decision

Defendant negligent and in breach of implied term. Further submissions and s 78B notices required before final quantum of damages can be determined.

• Catchwords: NEGLIGENCE - BREACH OF IMPLIED TERM - accident boarding chairlift - Jones v Dunkel - failure to call doctor - lift ticket - purported contractual exclusion of implied term and liability - s 5N(1) Civil Liability Act - s 68, s 68A, s 68B and s 74 Trade Practices Act - whether Civil Liability Act applies to causes of action for breach of term implied by s 74(1) arising prior to 13 July 2004 - s 109 of the Constitution - duty of care - breach - whether lift operator inattentive - risk of harm from chair arriving in defective state - precaution of lift operator observing state of chair from location near loading point - causation - s 5D - inherent risk - s 5I - dangerous recreational activity - s 5L - risk warning - s 5M - contributory negligence - breach of implied term - damages - pre-accident afflictions - post-accident restrictions - failure to provide records - whether adverse interest should be drawn - economic loss - Sections 12 and 13 of Civil Liability Act - whether rental income and management fees earnings - gratuitous attendant services - lost fees from days absent from work.
• Legislation Cited: - Civil Liability Act 2002 - ss 5B, 5C 5D, 5I, 5L, 5M, 5N, 5R; - Civil Liability (Non-economic Loss) Amendment Order 2012; - Civil Liability Amendment (Personal Responsibility) Act 2002; - Competition and Consumer Act 2010 (Cth); - Judiciary Act 1903 (Cth) - s 78B; - Trade Practices Act 1974 (Cth) - ss 4L, 68, 68A, 68B, 74; - Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth); - Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth)
• Cases Cited: - Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; - Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; - Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1; - Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 86 ALJR 522; - Belna Pty Ltd v Irwin [2009] NSWCA 46; - Benic v State of New South Wales [2010] NSWSC 1039; - Browne v Dunn (1893) 6 R 67; - Chapman v Hearse [1961] HCA 46; 106 CLR 112; - Davis v Bunn [1936] HCA 44; 56 CLR 246; - Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418; - Fkiaras v Fkiaras [2010] NSWCA 116; 77 NSWLR 468; - Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151; - Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297; - Graham v Baker [1961] HCA 48; 106 CLR 340; - Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 241 FLR 125; - Insight Vacations Pty Ltd v Young [2011] HCA 16; 243 CLR 149; - Jones v Dunkel [1959] HCA 8; 101 CLR 298; - Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; - Nair-Smith v Perisher Blue Pty Ltd [2011] NSWSC 878; - Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070; - Novakovic v Stekovic [2012] NSWCA 54; - Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; - Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; - Shaw v Thomas [2010] NSWCA 169; - SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516; - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; - Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; - Wallace v Kam [2012] NSWCA 82; Aust Tort Reports 82-101; - Wallace v Kam [2013] HCA 19; 87 ALJR 648; - Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388; - Woolworths Ltd v Lawlor [2004] NSWCA 209; - Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
• Texts Cited: - Review of the Law of Negligence: Final Report (September 2002) (the "Ipp Report"); - Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths
• Category: Principal judgment
• Parties: Ghita Nair-Smith - Plaintiff; Perisher Blue Pty Ltd - Defendant
• Representation: Counsel: D.A. Wheelahan QC, Gary J. Smith (Plaintiff); J.E. Maconachie QC, R. Montgomery (Defendant); Solicitors: Lough & Wells (Plaintiff); DibbsBarker (Defendant)
• File Number(s): 2006/294818

Judgment

1 Late in the afternoon of Friday, 18 July 2003 the plaintiff, Dr Ghita Nair-Smith, was skiing at the Perisher ski fields with her family and some friends. She and two of her friends skied to the bottom of the "Perisher triple chair". They entered the area of the ski lift and moved to the designated loading point for the triple chair. Dr Nair-Smith was standing on the right from the perspective of an observer facing up the slope.

2 It is common ground that the chair they were proposing to board came down the mountain and turned the "bull wheel" of the chairlift with its safety bar in the down position and that at some point a lift operator was able to raise it. It is also common ground that, as the chair continued on its course, its right hand rail struck Dr Nair-Smith in the groin area from behind.

3 Dr Nair-Smith alleges, inter alia, that the lift operator only noticed that the safety bar was down just prior to the chair colliding with her and when it was past him. She further alleges that his actions caused the chair to move out of its alignment and strike her. She contends that the employer of the lift operator, Perisher Blue Pty Ltd ("Perisher"), was negligent and in breach of a term implied into the contract between her and Perisher under former s 74(1) of the Trade Practices Act 1974 (Cth) ("TPA"), which required that the latter provide services with due care and skill.

4 Perisher vigorously disputed these allegations. It contended, inter alia, that its operator raised the safety bar in a safe and timely manner, but that Dr Nair-Smith and her travelling companions unnecessarily panicked and she moved out of alignment with the designated loading point. It denied negligence and breach of any term implied into the contract between it and Dr Nair-Smith. It further contended that the term implied under s 74(1) was excluded by the terms of Dr Nair-Smith's lift ticket, which it said also operated to exclude all liability on the part of Perisher.

5 For the reasons that follow, I accept that Dr Nair-Smith and her travelling companions were out of alignment with the designated loading point at the time she was struck by the chair. However I conclude that this misalignment was relevantly caused by the response of one or more of them to the very late intervention of the operator in addressing the circumstances that the safety bar was down on the chair and his approaching the chair from behind.

6 I also find that there was an implied term of Dr Nair-Smith's contract with Perisher that it would provide transport services with due care and skill. This implied term was not excluded by the words printed on Dr Nair-Smith's lift ticket; nor was Perisher's liability for any breach of it or in negligence excluded or modified by those words. Further, as the accident occurred on 18 July 2003, being almost a year prior to the commencement of the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), it is arguable that, by the operation of s 109 of the Constitution, neither Dr Nair-Smith's allegation of a breach of the implied term or the assessment of the amount of damages recoverable by her in respect of any such breach are affected by the Civil Liability Act 2002 (the "CLA"). Whether that is so will have to await further submissions and the issue of notices under s 78B of the Judiciary Act 1903 (Cth). These reasons address the questions of breach and quantum on the basis that those matters are governed by the CLA.

7 I further find that the actions of the lift operator were negligent and causative of the accident. I reject the defences raised by Perisher under the CLA and the allegation of contributory negligence on the part of Dr Nair-Smith. I consider that it follows from those conclusions that Dr Nair-Smith has also established a breach of the term implied by s 74 of the TPA, even assuming the determination of that issue is governed by Part 1A of the CLA.

8 I make various findings concerning the loss occasioned to Dr Nair-Smith by reason of the accident and have assessed damages under the CLA. Although some further matters need to be addressed, it is likely that the amount recoverable if the CLA applies is likely to be modest. However, as I have indicated, it may be that the assessment of her damages is not constrained by the CLA. The parties are to be given the opportunity to address on the appropriate amount of damages recoverable in the event that I so find.

9 The balance of these reasons is structured as follows:

(1) How Did the Accident Happen? ([10] to [79]);

(a) The Chairlift ([14] to [26]);

(a) Dr Nair-Smith's evidence ([27] to [36]);

(b) Mrs Nowland's evidence ([37] to [44]);

(c) Mr Nowland's evidence ([45] to [46]);

(d) Mr Smith's evidence ([47] to [48]);

(e) Mr Lofberg's evidence ([49] to [56]);

(f) Dr Nair-Smith's alignment at the time of the accident ([57] to [66]);

(g) Mr Lofberg's position and response ([67] to [79].

(2) The cause of action in contract and the purported exclusion of liability ([80] to [125]);

(3) Negligence ([123] to [196]);

(a) Duty of Care ([129] to [134]);

(b) Breach of Duty ([135] to [167]);

(c) Causation ([168] to [171]);

(d) Section 5I - Inherent risk ([172] to [173]);

(e) Section 5L - Dangerous Recreational Activity and Obvious Risk ([174] to [181]);

(f) Section 5M - Risk Warning ([182] to [193]);

(g) Section 5R - Contributory Negligence ([194] to [196]).

(4) Breach of the term implied by s 74(1) of the TPA ([197]);

(5) Quantum ([198] to [358]);

(a) Pre-accident Condition ([204] to [218]);

(b) Post-accident Treatment ([219] to [246]);

(c) Post-accident Functioning - Work Hours ([247] to [271]);

(d) Post-accident Functioning - Recreational Activities and Personal Relations ([272] to [279]);

(e) Need for Assistance ([280] to [283]);

(f) Psychiatric Evidence ([284] to [290]);

(g) Medico-legal Diagnosis and Prognosis ([291] to [311]);

(h) Non-economic Loss - CLA ([312]);

(i) Non-economic Loss - General Law ([313]);

(j) Economic Loss - General ([314] to [333]);

(k) Economic Loss - CLA ([334] to [347]);

(l) Economic Loss - General Law ([348]);

(m) Domestic Assistance - Past and Future - CLA ([349];

(n) Domestic Assistance - General Law ([350]);

(o) Out of Pocket Expenses ([351] to [355]).

(6) Future Progress ([356] to [358]).

(1) How did the accident happen?

10 Affidavit and oral evidence concerning the accident was provided by Dr Nair-Smith and the two friends with her on the chair, Mr and Mrs Nowland. Her husband, Mr Andrew Smith, also gave evidence of a conversation with Mr Nowland immediately after the accident. Perisher adduced evidence from the lift operator on duty at the time of the accident, Mr Michael Lofberg. Some of these witnesses made statements on the evening of the accident.

11 I did not form an adverse view of the honesty of any of these witnesses. Neither of the very experienced Queens Counsel who appeared for the parties submitted that any of these witnesses was not giving truthful evidence in relation to the events surrounding the accident, nor was any such suggestion put to any of the witnesses in cross examination. However the hearing was conducted more than nine years after the day of the accident. The disputed evidence as to what occurred is principally concerned with events that took place over a matter of seconds. In those circumstances there is an obvious potential for the witnesses to have been mistaken in their recollections when giving evidence.

12 In these circumstances, my assessment of their evidence gives primacy to the objective evidence concerning the characteristics and operation of the chairlift and significant weight to aspects of the accounts given by the witnesses on the evening of the accident allowing for the limitations under which those statements were made.

13 Both parties adduced expert evidence which addressed the operation of the chairlift as well as the appropriate standard of care expected of an operator in Perisher's position. Dr Nair-Smith adduced evidence from Mr Mark Dohrmann, a qualified engineer and ergonomics expert (see Nair-Smith v Perisher Blue Pty Ltd [2012] NSWSC 1070 at [7] to [13]). Perisher adduced evidence from an engineer, Mr Charles Needham. I describe his evidence below at [58] to [61]. It also adduced evidence from Mr John Gow, who has extensive experience in the conduct of ski resorts and the operation of ski lifts.

The Chairlift

14 As its name implies, the triple chair can accommodate three adult skiers on each chair. Skiers travel up a ski slope on the chair which is suspended from a moving cable. The cable is suspended from towers placed at regular intervals on the hill. At the bottom of the ski run is the loading station for the chairlift. For an observer placed immediately behind the end of that station facing up the slope, the chairs come down the hill on the left hand side and move into an enclosed area. Within the enclosed area the cable with the attached chairs passes around a large wheel (the "bull wheel") before travelling back up the hill on the observer's right.

15 The chairs are attached to the cable by a clamp on the end of a single vertical piece of metal. In turn, that piece of metal attaches to the top of the frame of the chair. In its natural position the chair leans back. When skiers are placed in the chair, a safety bar is pulled over the front of them. Prior to skiers boarding, the bar is or should be in the up position. This bar extends to the back of the chair and pivots on an axis that is approximately half way up the height of the chair. From my observation of a video of the chairlift in operation (see below), it appears to be easy for a person standing beside the chair to move the safety bar up or down. There are side bars or rails on each chair.

16 In the course of normal operations the chairs move at a regular speed. They do not slow down or stop to allow skiers to board or alight. Skiers board a chair by forming a line towards the back and on the right hand side of the loading station (from the perspective of the observer looking up the slope). At the front of the queue is a pair of gates that open automatically after a chair passes around the bull wheel to enable the skier(s) to board the next chair. The skier(s) move forward until they arrive at a loading point designated by a line marked on the platform. In doing so they traverse a wooden platform. They move across a part of the platform which is packed with snow and is raised above its surrounds at a height which appears to be about 5cm. At this point the next chair enters and then exits the bull wheel. Usually its bar is in the raised position as it approaches the skier. The skier's body and skis face away from the approaching chair and up the hill. They usually have their ski poles in their hands. The skier mounts the chair by sitting down on the approaching chair. They receive assistance from a lift operator. The skiers are meant to pull the safety bar down in front of them as they travel up the hill. Just beyond the loading point, the platform drops away.

17 It is critical to note that the chairs are capable of swinging back and forth in the line of the cable ("pitch") and from side to side perpendicular to the cable ("roll"). The possible extent to which the chair can rotate around its vertical axis ("yaw") was the subject of some evidence from Mr Needham, which I set out below.

18 There were a number of agreed facts concerning the operation and dimensions of the chairlift. The weight of a chair is approximately 95 to 100kg. The height of the seat is 50cm. When the safety bar is down, the front edge of the safety bar is approximately 85 to 90cm above the cleared snow. The top part of the fixed side rail on the front of a chair is approximately 75cm above the loading ramp. It was this part of the chair that struck Dr Nair-Smith.

19 The regular speed of the chairlift is 2.3 metres per second. On a chair's incoming journey to the bull wheel, the distance from the incoming ramp edge to the centre line of the bull wheel is 7.1 metres. The distance from the exit point of the bull wheel to the load point is 1.8 metres. The joint experts' report also stated that the "[d]istance around [the] bull wheel" was 5.6 metres, which appears to be a reference to half of the circumference. Thus the time from the chair entering the bull wheel (as opposed to the loading station) to the loading point is 3.2 seconds, and from it exiting the bull wheel to the loading point is 0.78 seconds. The interval between chairs is 19.055 metres or 8.28 seconds.

20 It was agreed, except by Mr Dohrmann, that there are at least two sets of controls with emergency stop buttons. Depicted in one of the videos described next is a button that can slow the speed of the chairs. One is located on the lift operator's hut which is near the loading point. The time interval between the pressing of the emergency stop button and the lift coming to a complete halt is 2.5 seconds for a loaded chair and 3.6 seconds for an unloaded chair. The experts noted that the "chairs would not necessarily come to a stop in these times". This qualification was not explained further. The effect of pressing the stop button is that the haul rope decelerates and stops in 2.9 metres for a loaded chairlift and 4.1 metres for an unloaded chairlift.

21 A video was tendered showing the "normal loading" of the chairlift ("the First Video"). In the initial part of the video, the camera operator is viewing the chairlift from a position just uphill from the loading point. The video depicts a queue of skiers moving quickly through the automatic gates. The skiers and snowboarders can be seen to move to the loading point and board the chair with the skiers holding their poles in their hands. In the latter part of the video the camera operator is positioned on the other side of the chairlift with the bull wheel to their right, and then at the front of the skiers' queue looking uphill. The lift operator is usually located about half a metre in front of the loading point, that is, between the loading point and the automatic gates in front of the queue of boarding skiers.

22 Two matters should be noted about the scene depicted in that video.

23 First, the video shows one lift operator standing near the loading point. He is facing towards the queue of skiers and has an uninterrupted view of the chair as it travels down hill, approaches the bull wheel, passes around it and comes out the other side. This operator assists skiers and snowboarders to mount the chair. In circumstances where there is a queue of skiers, and given the speed of the chairlift, there is no time for that operator to attend to any other duties. In the latter part of the video, where the camera operator is looking uphill, there are occasions when the ski queue is empty. On those occasions the operator briefly performs other tasks such as sweeping the platform until skiers arrive.

24 Second, most of the skiers and snowboarders in the video board a chair in pairs. In some instances there are three adults or older teenagers, and on a couple of those occasions they struggle to all fit on the chair. In such cases the skier on the outside of the group has their outer ski near the raised edge of the snow and ice on the platform that I have described in [16]. In one instance, which is three minutes and thirty three seconds into the video, a teenage skier closest to the lift operator has their ski slip off that edge and experiences some difficulty in boarding the chair. Twice in his evidence, Mr Lofberg commented on the difficulties experienced when three people attempted to board the triple chair.

25 Another video was tendered of the chairlift in operation ("the Second Video"). This video is taken from the incoming side of the lift station, with the bull wheel to the right of the camera operator. It is two minutes and thirty-four seconds in duration. It was common ground that it was a staged demonstration designed to show how a lift operator could deal with the circumstance that a safety bar on a chair was down as it turned on the bull wheel. In the demonstration someone near the camera operator is placing the safety bar in the down position for every second or third chair. The lift operator who is assisting the skiers to mount the chairs is clearly aware of the safety bar being down at a point prior to the chair entering the bull wheel. As the chair enters the bull wheel the lift operator is positioned about half a metre forward of the loading point. His reaction to noticing the bar is down is to step forward approximately another half a metre towards the automatic gates and bump the bar up. At that point he is approximately a metre to a metre and a half forward of the marked loading line. He places his right hand on the safety bar to raise it at least a metre prior to it making contact with the assembled skiers. The first part of this video depicts the operator performing this task while the chairlift is operating at a slower speed than normal. After one minute and thirty-eight seconds the operator pushes a button on the lift operator's hut near the loading point, and the speed of the chairlift increases. At both speeds the lift operator does not experience any difficulty in bumping the safety bar in the manner I have indicated.

26 In considering the relevance of this video, two limitations on this demonstration should be noted. First, this demonstration does not address the circumstance of an operator located at the usual position for loading skiers (ie half a metre forward of the loading point) who does not see the bar in the down position until it is past the bull wheel and near the skiers. Second, the demonstration does not address the circumstance of the lift operator being further in front of the loading point such as near the exit point of the bull wheel or at the gates and only becoming aware that the safety bar is down when the chair is either adjacent to them or between them and the skiers waiting at the loading point.

Dr Nair-Smith's Evidence

27 In the afternoon of 18 July 2003, Dr Nair-Smith was at the Perisher ski fields with her husband, her two children, her friends Peter and Alison Nowland and their two children. Dr Nair-Smith had been a skier for approximately 25 years. She had mainly skied in Australia but had also skied in Europe and New Zealand. She considered herself an advanced skier.

28 At around 3.45pm, Dr Nair-Smith and Mr and Mrs Nowland skied down the triple chair slope for their final run for the day. Dr Nair-Smith stated that she had not used the triple chair previously that day, but had "used it on literally hundreds of occasions previously over the years". There was no queue as they entered the chairlift area. In her affidavit sworn 13 December 2009 (her "first affidavit") Dr Nair-Smith said that there was no one at the gate but that there were two lift attendants in the area. She said one was standing near the loading position "about two metres to the side of the loading run and a similar distance back from the loading position". The second was on her left on the other side of the bull wheel "about where the chair commences the turn around the bullwheel". She said he had his back to her and was shovelling snow.

29 In her first affidavit, Dr Nair-Smith said the first attendant was initially facing away from the loading point, but that he turned towards their group and indicated they should move towards the loading point. She said they waited for a chair to pass in front and then skied to the loading position. She was on the outside of the group. She stood with her skis parallel to each other and faced forwards. She had her ski poles in one hand. She said she was "twisted slightly and looking over [her] left shoulder".

30 In her first affidavit Dr Nair-Smith stated that the following occurred:

"Almost as soon as we reached the correct loading position, I heard Alison yell out 'The bar's down'.

I immediately looked to where our chair was coming from, however the chair had passed behind the bullwheel and I could not see it immediately.

The chair then came out from behind the bullwheel and approached us on its track. I could see that the safety bar was in the down position. I yelled out the 'The bar'. Alison was also yelling, however I cannot recall specifically what she was saying.

When the chair was about one metre away from me, the lift attendant nearest to me lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him and at an angle, flipped the safety bar back up with his right hand, then let go of the chair."

31 Dr Nair-Smith said the chair then "came at the three of us at an angle" and at a higher speed than normal. She said that she did not change her body or ski alignment. She said that the armrest of the chair came straight up between her legs and impacted with her "right sacroiliac joint, [her] left vulva and [her] left pubic ramus". She felt immediate and intense pain. She said she remained straddled on the armrest but was eventually pulled into her seat by Mr Nowland. They attracted an operator's attention at the upper station of the chairlift. Eventually a ski patrol arrived and she was taken to a medical centre.

32 In cross examination Dr Nair-Smith maintained that she was standing at the proper place at the loading point at the time of the accident. She said that the lift operator was standing closer to the point at which the chair left the bull wheel rather than the loading point. Later in cross examination she was shown the second video. She stated that the lift operator was "behind the building", which was a reference to a position between the lift operator's hut and the queue of skiers. She said he was facing away from the skiers shovelling snow. It was suggested that she was not concentrating at the time she was trying to mount the chair. She answered:

"It happened with me watching him do it, yelling at him to notice that it was down, to get his attention, and, when I finally did get his attention, he had to lunge forward, grab at the chair, flick the arm rest back and let the chair go and, in doing so, the chair hit me at an angle, hit me on my right buttock, impaled me on the arm rest ..."

33 The reference to "lunge forward" meant lunge in a direction towards her. Dr Nair-Smith was conveying that the chair had passed the lift operator who then grabbed it and pulled it back with his left hand while "bumping" the safety bar over with his right hand.

34 On the evening of the accident Dr Nair-Smith completed a document entitled "Injured Persons Statement". She stated that she was in pain and upset at the time she completed it. In a section which asked for her narrative description of the incident she stated:

"... loading on Mt Perisher triple chair the bail arm was down as the chair came around the bull wheel. I was standing on the right with two other friends lift operator saw it ran out and tried to pull the chair bail arm up the chair was pulled up but the arm rail hit me between the legs the chair continued to go up whilst I stradled [sic] the chair handrail then the next person next to me helped me onto the chair; the chair was not stopped. Approx. 2-3 meters up from load I was back in the chair; we then rode the chair to the top when we yelled at the operator to stop the chair which he did before the net it then was then restarted stopped at unload the operator then helped me off then patrol were called." (emphasis added)

35 Dr Nair-Smith agreed that there was nothing in this statement about the chair being pulled out of its usual alignment and swinging back at an angle. However, as I will explain, consistent with other parts of the evidence it does indicate a late observation by the lift operator that the bar was down. Generally there should be no occasion for the lift operator to "run" to place the safety bar up if it emerges from the bull wheel in a down position, and the operator is only half a metre forward of the loading point.

36 In her first affidavit Dr Nair-Smith also stated:

"In all the years I have been skiing I have seen safety bars down as they approached me on maybe two or three occasions. On those occasions the lift attendant located near the loading area would simply move across to the chair and lift the bar into the upright position, several metres before it got to me, giving me plenty of time to safely sit."

Mrs Nowland's Evidence

37 In her affidavit sworn 15 December 2009 Mrs Nowland describes herself as an "expert skier". She states that she has been skiing since she was three years of age. Her parents were involved in the building of a ski lodge at Perisher. She took part in Perisher's racing school between the ages of fourteen and sixteen, competed in interclub skiing and represented her university. She has known Dr Nair-Smith for over twenty years and has spent a number of holidays skiing with her.

38 Mrs Nowland also said that there was no queue at the loading station when she, her husband and Dr Nair-Smith arrived. However she describes the lift operators as being in a different position to the description given by Dr Nair-Smith. She says that one of them was shovelling snow near the queuing point, but had his back to the chairlift. She said that the other lift operator was "up near the booth, a couple of metres back [from] and to the side of the loading point for the chairlift". Mrs Nowland stated that she moved through the gate to the loading position. She was positioned on the left facing up the hill, her husband was in the middle and Dr Nair-Smith was on the right.

39 She stated that as she arrived at the loading point she looked across to her left and saw the safety bar down on the next chair. She said that she yelled "The bar's down. The bar's down". She recalled Dr Nair-Smith and her husband yelling out but she could not recall what they said. Her description continued as follows:

"The chair then came out the other side of the bullwheel behind us. At this time I was looking over my right shoulder. I could see the chair approaching us and the safety bar was still in the down position. The three of us were still calling out. I was yelling, words to the effect 'The bar's down'.

The lifty who was nearest the loading point lunged at the chair. As best I can recall he grabbed the chair's closest corner with his left hand, then with his right hand grabbed the safety bar and flung it up, wrenching it. As he did so he also pulled the chair toward him, off the chair's normal alignment.

The lifty then let go of the chair and it came at us at an angle and faster than I expected.

I was still looking over my right shoulder at this point. My skis and feet had remained in the correct front alignment throughout the whole process. The chair first came into contact with my right buttock and I scrambled to sit properly on the seat." (emphasis added)

40 Mrs Nowland also completed a statement on the night of the accident. The relevant part stated:

"Three friends together proceeded up the short queue, through red barriers properly and to the take off/sit down line. It was 20 minutes before last run. The chair came around the bullwheel and was right up to us as we began to sit when we all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the Leichhardt lift side. We (me & my husband) managed to sit sideways and our friend was hit by the chair about twice full force because the chair had been held. It hit her directly between the legs with the chair metal arm rest bar.

The chair arm rest was what lifted her up and my husband lifted her onto the chair otherwise she would have fallen. The chair at no time stopped or slowed ..." (emphasis added)

41 Four matters should be noted about Mrs Nowland's evidence. The first concerns her observations of the location of the lift operator. I have noted what she stated in her affidavit at [38]. In cross examination she agreed that in an affidavit sworn on 10 July 2009, but not read, she had described the second lift operator as being closer to the loading point. The statement made by her on the evening of the accident does not mention that operator's location at all.

42 The second concerns the point in time when she noticed that the safety bar was down. Her statement suggests that she only realised at the very last instant that the bar was down, namely when "we began to sit". However, in her affidavit Mrs Nowland stated that she saw the bar was down when she got to the loading point and saw the chair they were to sit on before it entered the bull wheel. She maintained this in cross examination.

43 The third concerns whether Mrs Nowland, her husband and Dr Nair-Smith moved out of alignment when boarding the triple chair. Her statement suggests they did move out of alignment ("[w]e all tried to leap out of the way"). In her affidavit (and her oral evidence) she stated that they maintained the correct position at the loading point. Her explanation for stating to the contrary in her witness statement made on the day was that the statement was made at "7 o'clock at night. [She] was very stressed. [She] had a short period of time to make a witness statement. [Her] main focus was to record that [her] friend had been injured".

44 The fourth concerns the timing of the reaction of the lift operator. One consistent aspect of Mr Nowland's evidence is that the lift operator reacted late. In her affidavit she describes him as having "lunged". In cross examination it was suggested that this description was one that she may have seized upon in discussing the events with Dr Nair-Smith and her husband in the many years since the accident. In response, she stated that the chair was about half a metre from her when the operator pulled the chair towards him. That evidence and the descriptions of this aspect of the events in her affidavit are consistent with her description of the lift operator's actions in her statement. The statement suggests a late realisation on his part that the bar was down ("was right up to us" and "liftie dived").

Mr Nowland's evidence

45 Mr Nowland was also an experienced skier. He did not recall much of a queue at the chairlift station. He described two lift attendants being present. Mr Nowland stated that one attendant was shovelling snow near the entrance to the queue with his back to the chairlift and the other was taking down ropes that formed part of the queue line. He said he also had his back to the chairlift and was within a few metres, back and to the side of the loading point. In his affidavit sworn 16 December 2009, he described what happened as follows:

"When we arrived at the loading point I heard Alison yell out 'The bar's down.'

I immediately looked around over my left shoulder and saw that the safety bar was down on a chair that was just entering the bullwheel.

When I saw the safety bar I immediately yelled out 'The bar's down'. I heard both Alison and Ghita also yell out 'The bar's down'.

I then looked to over my right shoulder as the chair exited the bullwheel. The safety bar was still down.

At that point I began to consider quickly what possible options I had. I realised I could not go to my left or my right and I anticipated that I would simply have to try to heave myself over the top of the chair.

As the chair approached us I saw the lifty closest to us grab the chair. He was on the right side of the chair. I believe that he grabbed the back of the chair with his left hand and at the same time pulled the chair toward him and back, and lifted the safety bar with his right hand.

After pulling up the safety bar he then let go of the chair. The chair came at us very quickly, swaying and at an angle.

During this whole procedure I had not changed the alignment of my skis. They were still facing forward.

The armrest of the chair struck Ghita first. To me the chair almost came to a complete halt at that time. I was able to sit down on the chair.

Whilst the lifty had grabbed the chair and pulled up the safety bar, I was looking at him over my right shoulder. Ghita was in my vision the whole time. I did not observe her to change her alignment in any way." (emphasis added)

46 In cross examination Mr Nowland stated that he heard his wife yell out that the safety bar was down before the chair entered the bull wheel, although he later stated that he heard both his wife and Dr Nair-Smith yelling out when it was "in the bullwheel". He was adamant that the lift operator pulled it both back and towards him and it came at them swaying at an angle.

Mr Smith's Evidence

47 Mr Smith did not witness the events that led to his wife being injured. He was skiing with the children towards the bottom of the triple chairlift as his injured wife was passing overhead. He and the children entered the lift station shortly afterwards. He noticed that there were two operators. He said there was no one in front of him in the queue. The chair he rode on was five or six chairs behind his wife's chair but there was no one travelling between them. When he alighted he noticed that his wife was in distress. He recounted a conversation with Mr Nowland as follows:

Mr Smith: "What's happened?"

Mr Nowland: "We were all standing in position as usual waiting [for] the chair, we turned around and to our horror we saw the chairlift bearing down on us with the safety bar down. We had nowhere to go. The lifty lunged for the chair and managed to raise the bar. As a consequence, the chair swung and the arm of the chair struck Ghita between the legs. She was carried by the chair forward and upward. I grabbed her to prevent her from falling off ..." (emphasis added)

48 I allowed this evidence on the basis that, as Mr Nowland was to be called, it was admissible pursuant to s 64(3) of the Evidence Act 1995. It is notable that it also suggests a last minute realisation that the bar was down and late movement by the lift operator ("lifty lunged").

Mr Lofberg's evidence

49 Mr Lofberg attached two documents to his affidavit, both of which he completed on the day of the accident, being a witness statement and a principal lift operator's statement. In the witness statement he stated:

"I was bumping chairs getting the people in position at the load line when just before the chair got to them I realised the safety bar was down. I quickly flicked it up and bumped the chair back, it appeared the people got on the chair without incident ... [another operator] rang up and said that one of the ladies hurt her groin on the arm rest ..." (emphasis added)

50 In the principal lift operator's statement Mr Lofberg stated:

"... when chair came around I noticed safety bar was down but I got it up in time ... I didn't notice any problem when loading her ... I noticed the safety bar was down. Took a couple of steps towards chair from load flipped the bar up Then I pulled the chair back not to the side. The chair was ready for a load they seemed to panic but also seemed to be loaded properly."

51 In his affidavit Mr Lofberg recalled seeing the side rail of the chair passing between the "legs of the female passenger", although he says he did not realise she had suffered any harm. He states that it was relatively quiet at the time of the incident and he remembered "watching Dr Nair-Smith and her companions move forward to the load point and then observing the chair coming around the bullwheel". He states that he was standing "probably 2 metres" from the loading point but does not recall the "exact distance". He says that he saw the bar was down as the chair came around the bull wheel and that he "stepped forward and, as I met the chair, flicked the safety bar up". He states that at that point the chair was approximately "1.5 - 2 metres from where Dr Nair-Smith and her friends were standing on the load line". He said the bar was in the up position "for about 1.5 metres before the chair reached Dr Nair-Smith and her companions" and that he "still had time to bump the chair in the normal way". He denied "lunging" for the approaching chair. He could not recall what it was about their behaviour that suggested that they panicked, but denied that their shouting drew his attention to the bar being down or that the chair was swinging before it arrived at the load point.

52 Three matters should be noted about Mr Lofberg's evidence. First, in his affidavit Mr Lofberg stated:

"If Dr Nair-Smith had remained in the correct position at the load point, she would not have straddled the side rail and would have sat down on the chair normally."

This is a curious statement in that nowhere in his affidavit or in either statement that he made on the day of the accident did Mr Lofberg state that Dr Nair-Smith was not correctly aligned or positioned when the chair arrived. In cross examination he stated he agreed that his recollection was that they were standing in the correct position. However, his description in the principal lift operator's statement of them panicking is consistent with agitated jostling as the chair came close to the loading point.

53 Second, Mr Lofberg maintained in his evidence that he did not pull the chair to the side but only pulled it back, although it was not expressed with any degree of certitude ("my belief was I pulled the chair back, like I pull every other chair. I don't remember pulling the chair to the side").

54 Third, Mr Lofberg was unsure of what position he was in when he observed the bar was down. The estimates he provides in his affidavit noted above place him at the point the chair exits the bull wheel, or even at the skiers' entry gate. Yet at times in his evidence he also stated that he stepped forward (ie away from the loading point) towards the chair after he became aware that the bar was down.

55 In cross examination it was suggested to Mr Lofberg that he was attending to other duties as the chair came around the bull wheel, to which he replied that he could not "remember exactly what [he] was doing at the time." He accepted that he had a vague recollection of hearing people call out that the bar was down. In response to the suggestion that it was those voices that alerted him to the fact that the bar was down, he stated "[i]t could have been that, but I'm not sure". It was suggested to him that the chair with the bar down was very close to the skiers when he realised that it was down. He responded that he was "not sure exactly [of] the position of the chair when [he] noticed it ..." He was referred to the italicised portion of his witness statement and agreed that it suggested that the chair was close to the skiers when he noticed that the bar was up. He was asked:

"Q. So without being precise in terms of distance or time, you're certainly conveying the impression [that it was close to the skiers] there?

A. The last minute I've seen it.

Q. Yes, the last minute?

A. If I've written that, it's probably correct.

Q. I suggest to you that that caused you to move quickly to rectify the position?

A. Yes, so I can get the bar up before it got to them. I didn't want it to hit them.

...

Q. I'm asking you to consider this, I suggest to you that you came from behind the chair?

A. Yeah, I don't believe that was true.

Q. Why not?

A. From the memory of the time, I think I flicked it up coming towards me. I don't remember walking around and flicking it up."

56 Notwithstanding this last answer, the combination of Mr Lofberg's acceptance that he only noticed the down safety bar late, and his estimate of where he was located at that time, make it very likely that he grabbed the chair from behind and when it was very close to colliding with the skiers.

Dr Nair-Smith's alignment at the time of the accident

57 The first question I will address is the location of Dr Nair-Smith at the time she was struck by the chair. I accept that when they arrived at the loading point Dr Nair-Smith and her friends were correctly aligned.

58 As I have stated, a qualified engineer, Mr Needham, prepared a report concerning the triple chair's design, behaviour and operation. I have described some aspects of that report already. In addition, Mr Needham described the yaw (or capacity to twist) of the triple chair as being "constrained by the rigidity of the chair suspension and the high tension in the haul rope". He found that "[n]o significant amount of twist could be detected ... when twisting of the chair was attempted manually". Mr Dohrmann did not suggest the contrary.

59 From the perspective of an observer looking up the hill from the behind the chair, Dr Nair-Smith was positioned on the right hand side of her friends and was struck between the legs by the right hand side rail. As there was no capacity for the chair to twist, this means that she could only have been struck either because she was no longer aligned in the proper loading position for the skier on the right hand side of a group of three but had instead moved to the right or, after the intervention of Mr Lofberg, the chair had swung to the left behind her.

60 In his report Mr Needham modelled the capacity of the chair to have been pulled out of alignment by the lift operator pulling the chair towards himself and then to have swung back to the left side and struck Dr Nair-Smith if she was standing in the correct place of alignment. Mr Needham modelled the movement of the chair using the classic formulas describing the operation of pendulums. For a pendulum the size of the chair they yielded a period of motion of 3.2 seconds. This assumes that the chair's operation in the roll and pitch directions is frictionless. Mr Needham then measured its actual swing period as 3.0 seconds and its roll period as 2.6 seconds. This is reasonably proximate to his calculation of 3.2 seconds, allowing for friction. The roll period is of particular significance. It is far too large to enable the chair to have rolled to an alignment left of the skiers by the time it reached the loading point as a result of the lift operator having pulled it to the right and let it go sometime after it left the bull wheel.

61 Mr Needham also calculated the effect of differing amounts of force being applied by the lift operator at different angles. In his oral evidence he explained that it was possible to pull the chair to the side some 800mm. In the end those calculations confirmed that the application of force to the right at an angle between 90 and 180 degrees meant that "... it was unlikely that the chair may have been misaligned to the left at the time of the subject event. The dynamic response of the chair is such that it would have remained to the right under all likely conditions" (emphasis added).

62 This aspect of Mr Needham's observations is reflected in the responses that are recorded in the minutes of the joint conclave involving him, Mr Gow and Mr Dohrmann. They were given a set of assumptions that approximate to the version contended for by Dr Nair-Smith in that they involved her and her companions not moving out of alignment and the late intervention of a lift attendant who pulled the chair back and towards him (ie on the right), flicking the safety bar and releasing the chair which then travelled at the group "at an angle and faster than its normal speed". Both Mr Gow and Mr Needham did not accept that such a scenario was possible in that they considered that it was not possible for the "chair to have rolled to the left and to have accelerated by the time it reached the load line". Mr Needham explained that this was so because his calculations as to the roll period for the chair meant that it could never have had enough time to swing back to the left. He did accept that the chair could have accelerated, or at least appeared to the skier to have accelerated, as contemplated by the question, bearing in mind the combined effect of the pitch movement of the chair and the speed of the tow rope.

63 Mr Dohrmann's opinion was that the scenario outlined was possible. In cross examination he explained that he regarded it as possible if the lift operator had applied force to push the chair away from himself when he released it. Mr Dohrmann was criticised for doing so on the basis that that was said to be wholly speculative on his part. However, Mr Dohrmann was asked whether a version of events was possible. In answering that question he sought to reconcile those assumptions with the known characteristics of the chair, and did so by explaining that the assumed scenario was possible with the additional circumstance of the lift operator pushing the chair to the left.

64 Nevertheless, of the various descriptions of the accident, nothing provides much support for the supposition that Mr Lofberg pushed the chair to the left when he let go. It was not suggested to Mr Lofberg in cross examination that he did that. As a matter of common sense there seems little reason why he would do so. In any event, given the time frames involved and Mr Needham's calculations, it seems to me very unlikely that he could have applied sufficient force to drive it to the left before it struck Dr Nair-Smith. I am not satisfied that he did so.

65 In my view this leads to the inevitable conclusion that the point of collision between the right hand rail of the chair and Dr Nair-Smith's pelvic area was at some point to the right of the designated loading point on the raised area noted in [16] from the perspective of an observer looking up the slope. Thus, while I accept that Dr Nair-Smith and her travelling companions lined up at the loading point in the correct position, I also find that by the time the chair arrived, at least one of her legs had moved off the slightly elevated platform to the right. I note that this finding is contrary to the evidence of Dr Nair-Smith, Mrs Nowland, Mr Nowland and it seems Mr Lofberg. However, for the reasons I have already indicated, I give primacy to the material concerning the characteristics and operation of the triple chair.

66 The finding that Dr Nair-Smith was out of alignment when hit by the chair is supported by that part of Mrs Nowland's statement in which she stated that "[w]e all tried to leap out of the way", although I am only prepared to accept that as a description of her reaction and not necessarily that of her husband or Dr Nair-Smith. I have already described the narrowness of the raised part of the loading platform if three people are attempting to board the triple chair. In the situation described by Mrs Nowland in her statement, it would not take much jostling by even only one member of a threesome to cause a person on the outside such as Dr Nair-Smith to move out of alignment. This is especially so in this case given that, of the three of them, Dr Nair-Smith was the slightest in build. Thus, while I accept that Dr Nair-Smith was out of alignment with the chair when it struck her, I am not satisfied that that was a result of any panicked reaction by her. Instead it could have been a result of a panicked reaction by her or one or more of her travelling companions (or all three) and their jostling her. The next question that arises is what caused that reaction.

Mr Lofberg's position and response

67 I accept the evidence of each of Dr Nair-Smith, Mrs Nowland and Mr Nowland to the extent that they described themselves as experienced skiers. I also accept Dr Nair-Smith's evidence that she had previously observed situations in which the safety bar was down and the lift operator handled that circumstance with comparative ease. In the ordinary course I doubt that skiers of their experience would react adversely to a safety bar being down if they were aware that the lift operator was aware of the problem in sufficient time to address it.

68 One common feature of three of the four statements completed on the day of the accident is their description of a late or rushed reaction by Mr Lofberg to the safety bar being down. Dr Nair-Smith's statement referred to the operator as having "[r]un out". Mrs Nowland's statement referred to the "liftie" as having "dived". Mr Lofberg's statement described himself as having only realised the safety bar was down "just before the chair got to them". Each of the descriptions suggests a very different image to the scenario shown in the Second Video, where at both speeds the lift operator addresses the bar being down at least a metre to a metre and a half prior to the loading point with considerable ease. In cross examination Mr Lofberg accepted that he noticed it late (the "last minute"). He did not deny that his attention was directed to it by people yelling that the bar was down.

69 The evidence concerning the position of Mr Lofberg when he noticed that the safety bar was down was less clear. His account that he was standing "2 metres" from the loading point places the exit point from the bull wheel between him and the loading point. I have described Mr Lofberg's oral evidence on this topic at [55]. The descriptions of Dr Nair-Smith and Mrs Nowland in their statements suggest that when he acted to raise the safety bar he was not adjacent to it, but instead had to move some distance ("ran out" and "dived"). The other parts of the evidence describing his manoeuvre as a "lunge" all involve a movement on his part. They are inconsistent with him being located just in front of the loading point and immediately adjacent to the chair when he grabbed it. They are also inconsistent with the suggestion that he then took a calm step forward to lift the bar. To the contrary, I am satisfied that Mr Lofberg was at a point no closer to the loading point than the exit point of the bull wheel when he was made aware that the safety bar was down. From that point he ran, dived or lunged at the chair from behind, catching it just prior to it colliding with Dr Nair-Smith and her travelling companions. He was able to pull the chair back on its axis at that point and bump the safety bar, presumably with his right hand. I think it likely he pulled with some force out of alignment to the right. For the reasons I have already indicated, that did not result in the chair swinging to such a degree that it was aligned to the left of the raised platform at the loading point.

70 Senior Counsel for Perisher, Mr Maconachie QC, noted that a lot of the evidence had an impressionistic quality to it, in that the witnesses used descriptions like "late", "close", "lunged" etc. He also noted that the various estimates of distance were questionable in that they appear have provided them without reference to the actual measurements of the loading area for the chairlift. These points have some force, but they should not be taken too far. All of the witnesses were intelligent people with significant personal experience of using chairlifts. In the case of both Mr Lofberg and Dr Nair-Smith, they had previous experience of observing the safety bar being down and being bumped up by the lift operator in a safe manner. The description of the operator being late in bumping the bar, which certainly caused apprehension and panic in at least Mrs Nowland, is very different to that situation. In light of the configuration of the chair I am satisfied that it came within less than half a metre and probably less than 300mm of contact with the skiers. It is to be remembered that the axis point at the top of the chair enabled Mr Lofberg to pull the chair back with his left hand while he lifted the safety bar with his right. The subsequent behaviour of the chair under that scenario would account for the acceleration of the chair that the skiers observed.

71 What drew Mr Lofberg's attention to the safety bar being down? I accept the evidence of Mr Nowland and Dr Nair-Smith that they each made an observation as the chair exited the bull wheel and yelled out to Mr Lofberg. In the ordinary course that is when I would expected a skier to turn and observe the chair having put their poles in their hands. Mr Smith's description of his conversation with Mr Nowland, in which the latter stated "we saw the chairlift bearing down on us", is consistent with this. In his evidence Mr Lofberg accepted that it could have been the voices of the skiers that alerted him to the fact that the safety bar was down (see [55]).

72 Leaving aside the finding in [65], these findings are consistent with the evidence of Dr Nair-Smith and Mr Nowland, as well as the statement of Mrs Nowland. A chair that was pulled to the right and let go might appear to them to come at an angle, even if it could not twist. The misalignment of Dr Nair-Smith was the consequence of jostling in reaction to the chair coming so close with a safety bar down, although not necessarily by her. As Mrs Nowland stated in her statement: "... we all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the [right]". Mrs Nowland's statement was prepared shortly after the accident. It may be that she was stressed when she prepared it, but she was not in pain as Dr Nair-Smith was at that time. I do not accept that it necessarily gives an accurate account of Dr Nair-Smith's observations and reactions, but it is accurate in describing the actions of its author. Otherwise, her account accords with the probabilities and, in particular, the characteristics of the chairlift.

73 For the sake of completeness, I note two further matters. First, in one of his reports Mr Gow stated:

"From the point at which the chair rounded the bullwheel to the load point was 1.6 metres, a distance travelled by the chair in 0.7 seconds. ... I do not believe that it would have been possible for the operator to have performed the following in less than ¾ second:

a) dived backwards

b) regained footing

c) raised the restraining device

d) pulled the chair sideways ...

e) re-positioned himself behind the moving chair

f) pulled/bumped the chair backwards

g) raised the moving chair to some height

h) released the moving chair to impact with the plaintiff as described."

74 As I have stated, the speed of the chair was 2.3 metres per second. It would cover 100 metres in just over 43 seconds. There is nothing improbable in a fit adult overtaking the chair if rushing from behind. Otherwise no aspect of my findings involves the proposition that Mr Lofberg needed to regain his footing. Mr Lofberg's actions in pulling the chair back and sideways were part of one motion. It is not clear that the reference to "impact with the plaintiff as described" was to the impact following the chair swinging from the right back to the left. In the end result, Mr Gow's opinion is addressing a different scenario to the one that I have found took place.

75 Second, Perisher sought to rely on some notes from the doctors that Dr Nair-Smith consulted which referred to the circumstances of the accident.

76 On 1 August 2003 Dr Nair-Smith consulted Dr Garvan. Dr Garvan's handwritten notes include the following entries: "[indistinct but possibly turned] to look for chair and then - safety bar down - [all or we] jumped - no other [indistinct] at [indistinct] to lift bar up ... chair hit her on back - hit between legs". Dr Nair-Smith denied that that she told Dr Garvan that "we jumped". I accept that denial. I have no means of establishing whether Dr Garvan was seeking to take a verbatim account of what occurred, or whether any part of these notes includes his own assessment of what must or could have happened.

77 Perisher made a submission concerning the failure of Dr Nair-Smith to call Dr Garvan in part based on these notes and in part based upon the medical evidence it was said he could give as to Dr Nair-Smith's pre-accident condition. It contended that the failure to call him invites a "Jones v Dunkel inference" (referring to Jones v Dunkel [1959] HCA 8; 101 CLR 298). The particular inference was not specified. As the discussion in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 86 ALJR 522 at [167] to [170] and [250] to [270] illustrates, the invocation of Jones v Dunkel requires some precision as to what inference it is submitted should or should not be drawn from the failure of a party to call a particular witness. If it is meant to support no more than an inference that his evidence would not have assisted Dr Nair-Smith in proving the accident caused the physical injury claimed by her, then drawing that inference is not the same as concluding that his evidence would be adverse to her case. The inference would rise no higher than he cannot remember whether or not the notes record verbatim what she told him (see Hellicar at [168]). In the face of her denials such an inference would take the matter nowhere.

78 Otherwise at most in this context Jones v Dunkel only operates to enable an inference grounded in the evidence to "be more confidently drawn" where a witness that a party could be expected to call to contradict that inference is not called (Jones v Dunkel at 308) and possibly to make inferences sought to be drawn in favour of party who does not call a relevant witness less likely to be drawn (see Hellicar at [262] to [267] per Heydon J). These aspects of Jones v Dunkel and its progeny do not assist Perisher. In relation to the latter Dr Nair-Smith does not ask the Court to draw any inference in her favour as to what she told Dr Garvan. In relation to the former, based on his notes, Perisher presumably asks the Court to infer that Dr Nair-Smith told him that "we jumped". However Dr Nair-Smith has called direct evidence on that topic, namely from herself. She was a person "able to put the true complexion on the facts" relating to the subject discussed with Dr Garvan (Jones v Dunkel id). Having denied that she told Dr Garvan that "we jumped" she was under no obligation to call Dr Garvan to confirm what she told him, the breach of which would entitle the Court draw some form of inference as to the meaning of his notes.

79 For the sake of completeness I note that Perisher also referred to some notes taken by a physiotherapist, Ms Harkness, of a consultation with Dr Nair-Smith in October 2008. Ms Harkness' notes included an entry: "skiing accident 3-4 yrs ago, turned around to talk to friend behind her while sitting on chairlift ...". In cross examination Dr Nair-Smith denied telling Ms Harkness that. These entries do not take the matter anywhere. The configuration of the chairlift is not such that Dr Nair-Smith could have "turned around" to speak to her companions.

(2) The cause of action in contract and the purported exclusion of liability

80 Before addressing any issue of negligence, it is necessary to address and partially resolve various issues that arise concerning the interrelationship between certain provisions of the TPA and the CLA, and their application to any causes of action in contract and tort that Dr Nair-Smith may have arising out of the accident on 18 July 2003.

81 Part 1A of the CLA addresses the liability of a party for "Negligence". With the exception of s 5N, it came into force on 6 December 2002 (Civil Liability Amendment (Personal Responsibility) Act 2002, s 2; New South Wales Government Gazette, No 249, 6 December 2002, at 10529). Section 5N came into effect on 10 January 2003 (New South Wales Government Gazette, No 13, 10 January 2003, at 95). The provisions of Part 1A are operative in respect of all claims resulting from negligence arising before or after the date of their commencement, but do not apply to proceedings commenced in court before the relevant date (CLA, Sch 1, Item 5(1)) or civil liability excluded from its operation by s 3B (s 5A). A number of its provisions are addressed below.

82 The concept of "Negligence" is defined in s 5 as meaning a "failure to exercise reasonable care and skill". As such, it prima facie extends to allegations of breach of a term of a contract requiring the exercise of reasonable care and skill.

83 Part 2 of the CLA is entitled "Personal injury damages" and came into force on 20 March 2002 (CLA, s 2). It imposes various restraints and limitations on the damages recoverable by injured persons. On 6 December 2002 further amendments to Part 2 came into effect. Part 2 is operative in respect of all awards of personal injury damages that relate to an injury received, or death resulting from an injury received, whether before or after 20 March 2002 (CLA, Sch 1, Item (1)) subject to two presently immaterial qualifications.

84 Sub-section 3A(2) of the CLA expressly provides that the Act (other than Part 2) does not prevent parties from making express provision for their rights, obligations and liabilities under contract. Further, s 5N which is found within Part 1 provides:

Waiver of contractual duty of care for recreational activities

(1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.

(3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity.

(5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement.

(6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety."

(emphasis in original)

85 The phrase "recreational activity" referred to in s 5N(4) is defined in s 5K as including:

"(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."

86 Dr Nair-Smith's statement of claim pleaded a cause of action in negligence against Perisher and a cause of action in contract. The action in contract concerns the contract she entered into with Perisher when purchasing a lift ticket on 17 July 2003 for $80.00. The statement of claim pleaded that it was an express term of the contract that services supplied, such as uphill transportation, would be undertaken with due care and skill. As I understand it, this assertion was based on a statement made on a notice board above the ticket office windows at Perisher resort which is depicted in a photograph of signage tendered by Perisher. The statement was immediately qualified by a series of statements which robbed it of content and arguably purported to exclude liability on the part of Perisher. Other than the tender of the photo of the sign, there was no evidence (or submissions) from either party directed towards establishing that the sign had contractual effect. I am not satisfied that any part of that sign had such an effect.

87 However Dr Nair-Smith otherwise relied on a term implied by former s 74(1) of the TPA which as at July 2003 provided, inter alia:

"In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill ..."

88 It was not in issue that Perisher was a corporation, that it contracted to provide services, and that it did so in the course of its business. I address the services that were contracted to be provided below (at [101]). Dr Nair-Smith was clearly a "consumer" in that she acquired the "services" for less than the "prescribed amount" of $40,000 (former s 4B of the TPA). However Perisher contended that it excluded the operation of this term and also any liability under Part 1A of the CLA by reason of the written terms on the reverse side of the ticket and the operation of s 5N(1) of the CLA.

89 The front part of the ticket specified that it was "Adult one day", "Valid for Operating Lifts" and "Valid until 18 July 2003, without Skitube, Lift only". The terms on the reverse were in extremely small font, being around "Arial 5" (or just over 1mm in height). When magnified, they relevantly stated (emphasis added):

"Extract of terms and conditions: ALL SIGNS MUST BE READ. By purchasing or using this ticket, YOU ACKNOWLEDGE THAT ALPINE ACTIVITIES (INCLUDING SKIING & SNOWBOARDING) ARE RISKY AND DANGEROUS AND THAT YOU WILL UNDERTAKE SUCH ACITIVITES AT YOUR OWN RISK. You also acknowledge that you will observe the Alpine Responsibility Code (copy available on request) and conduct yourself in a safe and controlled manner at all times. You must follow directions given by us, our employees and agents. We make no express warranties in relation to the service we provide. All warranties, representations or conditions relating to the services we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded. You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act, 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again. You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims. This ticket 1/ Is valid for the day or period of issue only as displayed on this ticket. 2/ Remains our property at all times and must not be resold, transferred or altered in any way and a breach of this condition may result in confiscation of your ticket and may invoke police action; 3/ Must be permanently attached to clothing on upper torso as displayed on the ticket backing so as to be visible at all times; invalid if ticket wire is cut. 4/ Will not be refunded or replaced if lost or stolen or if any facilities are not operating for any reason or if any portion of ticket is unused. 5/ Does not entitle you to use the "tom thumb" j-bar unless directed by one of our authorised employees; 6/ entitle you to unlimited use of the Skitube between Perisher and Blue Cow for the day or period of issue only; 7/ does not entitle you to use of the resort facilities for any commercial purpose - except with our prior written consent; and 8/ does not entitle you to provide or receive skis or snowboard instruction except where provided by us, our employees or our agents. If You Breach Any Of The Conditions You Will Lose All Privileges Associated With This Ticket. SKIING/SNOWBOARDING IS A HAZARDOUS ACTIVITY AND THE HOLDER SKIS/RIDES AT HIS/HER OWN RISK. skiers/snowboarders must observe the Alpine Responsibility Code and ski/ride in a safe manner at all times. Failure to do so may result in forfeiture of skiing/riding privileges. ..."

90 Perisher did not contend that the terms of a particular sign or display on the ticket were incorporated. Otherwise, neither party addressed whether this writing had contractual effect but instead they appeared to assume that it did. I will proceed on the same assumption, but without finding that is the case. It is not obvious that the writing has contractual force. The lift ticket that was tendered was not signed by Dr Nair-Smith and I was not asked to make a finding that she was or ought to have been aware of the above terms (see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [54] to [55]).

91 Whether or not the term implied by s 74(1) could be excluded by agreement was governed by former ss 68, 68A and 68B. In addressing these provisions, the submissions filed on behalf of Dr Nair-Smith referred to a roughly equivalent provision now found in s 64 of the Australian Consumer Law (and presumably reliance is also placed on s 64A of the Australian Consumer Law, and s 139 of the Competition and Consumer Act 2010 (Cth)). However, the correct provisions are those that were in force on the day of Dr Nair-Smith's accident. The contract was formed on the day before the accident, any breach occurred on the day of the accident and any loss or damage was occasioned on that day.

92 Allowing for that modification, Dr Nair-Smith relied on s 68 to contend that any contractual term, including those found within the lift ticket, purporting to exclude either the implication of the term provided for by s 74 or limit the remedies for its breach was void. As at July 2003 s 68 of the TPA provided:

"Application of provisions not to be excluded or modified

(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying:

(a) the application of all or any of the provisions of this Division;

(b) the exercise of a right conferred by such a provision;

(c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or

(d) the application of section 75A;

is void.

(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section."

93 Subsection 68(1) operates upon particular "terms" of a contract. I address the potentially relevant terms below at [109] to [116]. At present it should be noted that the effect of this provision is to render the entire term "void" and not just void "to the extent" that it purports to have the effect referred to in any of paragraphs (a) to (d) of s 68(1) (see Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths at [1745]). Thus, for example, if the one term sought to exclude liability for negligence and breach of a condition or warranty implied by the TPA then the effect of s 68 is that it would not be effective to do either.

94 In its submissions Perisher referred to s 4L of the TPA which provided:

"Severability

If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87, 87AAA or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable."

95 The proper operation of this provision was explained by the High Court in SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516 ("SST Consulting") at [40]:

"Much more often than not the definition of the extent of severance will be revealed by the way in which the condition for engagement of s 4L operates. That condition requires the identification of a provision whose inclusion in the contract brings about the result that making the contract contravened the Act. It is that provision which is unenforceable and void and it is that provision which is to be severed from the other provisions of the contract. Subject to any order made under s 87 or s 87A, nothing in the Act affects the validity or enforceability of those other provisions." (emphasis in original)

96 Reliance on s 4L will not avoid the consequence identified in [93]. The inclusion in a contract of a particular term which falls foul of s 68 does not of itself have the effect that the making of the contract contravenes the TPA. Even if that were so, s 4L merely enables the excision of the relevant term with the assistance of the metaphorical "blue pencil" (SST Consulting at [52]). It does not authorise the rewriting of a particular term.

97 In any event, on its face s 68(1) has the effect contended for by Dr Nair-Smith. Perisher did not argue otherwise. However it sought to avoid its operation by relying on either or both of ss 68A and 68B as in force in July 2003. First s 68A provided:

"Limitation of liability for breach of certain conditions or warranties

(1) Subject to this section, a term of a contract for the supply by a corporation of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption is not void under section 68 by reason only that the term limits the liability of the corporation for a breach of a condition or warranty (other than a condition or warranty implied by section 69) to:

(a) in the case of goods, any one or more of the following:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;

(iv) the payment of the cost of having the goods repaired; or

(b) in the case of services:

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

(2) Subsection (1) does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it is not fair or reasonable for the corporation to rely on that term of the contract.

(3) In determining for the purposes of subsection (2) whether or not reliance on a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters:

(a) ... ;

(b) ... ;

(c) ... ; and

(d) ... " (emphasis added.)

98 Dr Nair-Smith did not rely on s 68A(2), but did contend that the services supplied were of "a kind ordinarily acquired for personal, domestic or household use or consumption" so as to negate any attempt to avoid the operation of s 68 by the use of s 68A. I agree. I address the nature of the services that were contracted to be provided below (at [101]). There was no definition of the phrase "personal, domestic or household use or consumption" in the TPA but I cannot see any reason to doubt that the services provided pursuant to a ticket issued by Perisher, however defined, were ordinarily acquired for "personal ... consumption". I find that in this case s 68A was not operative to save any term of the contract from the application of s 68(1).

99 Second, as at July 2003 section 68B provided:

"Limitation of liability in relation to supply of recreational services

(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying:

(a) the application of section 74 to the supply of the recreational services under the contract; or

(b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or

(c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract;

so long as:

(d) the exclusion, restriction or modification is limited to liability for death or personal injury; and

(e) the contract was entered into after the commencement of this section.

(2) In this section:

disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin.

injury means any physical or mental injury.

personal injury means:

(a) an injury of an individual (including the aggravation, acceleration or recurrence of an injury of the individual); or

(b) the contraction, aggravation, acceleration, or recurrence of a disease of an individual; or

(c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to, or result in harm or disadvantage to:

(i) the individual; or

(ii) the community.

recreational services means services that consist of participation in:

(a) a sporting activity or a similar leisure-time pursuit; or

(b) any other activity that:

(i) involves a significant degree of physical exertion or physical risk; and

(ii) is undertaken for the purposes of recreation, enjoyment or leisure.

(3) The definition of injury in subsection (2) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section." (emphasis added)

100 Section 68B was introduced into the TPA with effect from 19 December 2002 by the Trade Practices Amendment (Liability for Recreational Services) Act 2002 (Cth) (s 2).

101 To invoke s 68B the relevant contract must be one for supply by the corporation of "recreational services" as defined. Little attention was directed during the trial to exactly what services are provided by Perisher in exchange for the $80.00 cost of a ticket. The front part of the ticket states that it is "valid for operating lifts", suggesting that Perisher agreed to provide the services of its ski lifts. Condition 6 on the reverse appears to extend that to the use of the "skitube" between Perisher and Blue Cow, presumably being another transport service. There is no suggestion that any ski tuition or assistance of that kind was agreed to be supplied under the contract between Dr Nair-Smith and Perisher. I find that the only services contracted to be supplied by Perisher were transportation services up the ski slopes and between some ski slopes.

102 The definition of "recreational services" in s 68B(2) was briefly touched upon in the High Court's' judgment in Insight Vacations Pty Ltd v Young [2011] HCA 16; 243 CLR 149 and the judgment of Spigelman CJ in the Court of Appeal in the same case (Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 241 FLR 125). In Insight the plaintiff was injured while on a bus trip which was part of a European tour package. She sought to rely on term implied by s 74(1) of the TPA, but the tour provider responded by relying on an exemption clause in combination with former s 74(2A) of the TPA to engage s 5N(1) of the CLA. As noted below, s 74(2A) was inserted with effect from 13 July 2004 and provided:

"(2A) If:

(a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and

(b) the law of a State or Territory is the proper law of the contract;

the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract."

103 In the Court of Appeal Basten JA and Sackville AJA found that s 74(2A) did not pick up and apply s 5N because the latter was not a provision that of itself limited or precluded liability; instead it merely authorised a contractual provision limiting or precluding liability for breach of the implied statutory warranty (at [96] and [153] respectively, contra Spigelman CJ at [30]). As s 68 rendered the term in question void, s 5N(1) did not operate to give it effect (at [104] per Basten JA and [154] per Sackville AJA). I address that aspect of their reasoning below. On appeal the High Court upheld this reasoning (at [26]) and the outcome on the additional basis that s 5N did not apply to contracts for services to be performed wholly outside New South Wales (at [36]).

104 In its judgment at [25] the High Court referred to s 68B but only to note that its definition of "recreational services" was different to the definitions of "recreational activity" and "recreation services" in the CLA. This difference is illustrated by the judgment of Spigelman CJ in the Court of Appeal. His Honour considered that the definition meant that s 68B simply had no application to the plaintiff's coach trip in that case, but his Honour did find that the trip was captured by the definition in s 5K of "recreational services", as the transportation was provided for "enjoyment relaxation or leisure" (at [21] and [62] to [63]).

105 A critical aspect of the definition of "recreational services" in s 68B is the focus on "participation" in one of the specified activities. This is clearly a reference to participation by the customer. However, this part of the section is awkward in that it refers to "contracts for the supply of ... services that consist of participation", but the entity undertaking that supply is the corporation, not the participating customer. Thus, the corporation must supply services that consist of participation by the customer. At its most favourable to Perisher, this definition could extend to contracts for the supply of services that immediately and directly facilitate participation, such as ski school training, tuition and supervision, etc. Although it is a difficult use of the language, the supply of, say, instruction and diving assistance to recreational scuba divers could be characterised as a service that consists of participation by those divers. Difficult questions could arise with contracts for the supply of a number of services that include services that directly facilitate participation and some which are only ancillary, e.g. transport.

106 However, in this case the agreement between Dr Nair-Smith and Perisher was not a contract for the supply of services consisting of "participation" in a "sporting activity or a similar leisure-time pursuit". The only service that Perisher contracted to provide was transport up a ski slope and possibly between slopes. Skiing is undoubtedly a sporting activity, but being transported up a ski slope and between ski slopes is not participating in a sporting activity. Nor does such transportation constitute "participation in ... any other activity that ... is undertaken for the purposes of recreation, enjoyment or leisure". Perisher only contracted to provide transport services and those services did not involve the relevant form of participation by the customer. For this reason I reject Perisher's reliance on s 68B as a potential means of avoiding the operation of s 68(1).

107 There is a further obstacle in the face of Perisher's attempt to invoke s 68B. The section provides that the term that purports to exclude, restrict or modify the implied term or Perisher's liability for a breach of it will not be void "by reason only" that it excludes, restricts or modifies the application of s 74 to the supply of recreational services under the contract or the liability of Perisher for a breach of the warranty implied by s 74 in relation to that supply. More significantly the narrow excision from the operation of s 68(1) which s 68B creates will only operate "so long as ... the exclusion, restriction or modification is limited to liability for death or personal injury" (emphasis added). The exclusion, restriction or modification referred to is that sought to be given effect to by the term in question that otherwise falls foul of s 68(1). To be saved by s 68B, the term cannot by its terms purport to exclude, restrict or modify other forms of liability, e.g. for property damage. If it did, then the exclusion, restriction or modification is not limited to liability for death or personal injury and s 68B will not prevent it being rendered void under s 68(1). Section 68B could have been expressed to avoid the operation of s 68(1) "to the extent" that the exclusion, modification or restriction applied to death or personal injury, but it was not.

108 Perisher sought to counter this by relying on s 4L of the TPA, which I have set out and addressed above.

109 It is now necessary to address those parts of the printed terms on the lift ticket that might operate to exclude the term implied by s 74(1), limit any liability for any breach of it, or otherwise restrict Perisher's liability in negligence. The first potentially relevant "term" of the lift ticket, for these purposes, was as follows:

"All warranties, representations or conditions relating to the service we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded."

110 At most this clause purports to operate to exclude the implication of a warranty or condition in the contract. It does not purport to exclude or modify Perisher's liability in negligence. Even if it operated to validly exclude the implication of a warranty under s 74, Dr Nair-Smith could still sue Perisher in negligence. At the relevant time, s 5N(1) enabled parties to a contract to exclude "any liability" to which Division 5 of Part 1A of the CLA applies. However, it does not give a clause in such a contract any greater role than its words bear. A contractual exclusion of an implied term to exercise due care and skill is not transformed into a contractual exclusion of a duty of care or liability in negligence for a breach of this duty by s 5N(1).

111 Further, I do not consider that this term operates to exclude the term implied by s 74(1). The starting point is to construe the term. Subsection 68B(1) only operates to prevent a term being rendered void under s 68. Section 68(1) only operates to render a term void if it expressly or necessarily purports to exclude the term implied by s 74(1) (s 68(2)). However this term does not purport to do that because its operation is limited by the words "permitted by law". No "permission" to exclude the term implied by s 74(1) is provided anywhere in the TPA. Section 68B is not such a permission. It is only an exception to s 68(1). Thus, on its proper construction, this term does not purport to exclude the implication of the term referred to in s 74(1). On that basis it is not rendered void by s 68(1), and s 68B is not engaged at all.

112 The second potentially relevant term was the following statement in the lift ticket:

"You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again."

113 This clause also does not purport to preclude Perisher's liability in negligence. In so far as s 74(1) is concerned, this clause appears to have been drafted in an attempt to invoke s 68A. For the reasons given at [98], s 68A cannot be invoked with this contract. For the reasons given at [106], s 68B cannot be invoked with this contract either. However, even if s 68B could be invoked with this contract, it does not assist Perisher. This clause clearly purports to restrict or modify the liability of Perisher for breach of the term implied by s 74(1) (s 68(1)(c) and s 68B(1)(c)). The restriction or modification sought to be made by this term is not limited to liability for death or personal injury so that, for that further reason, s 68B(1) was not engaged. It follows that this term was rendered void by s 68(1).

114 The third potentially relevant "term" found within the ticket was as follows:

"You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims." (emphasis added)

115 This clause purports to exclude the liability of Perisher for negligence and breach of the term implied by s 74 (s 68(1)(c) and s 68B(1)(c)). For the reasons given at [98] and [106], neither s 68A nor s 68B were able to be invoked with this contract. Even if s 68B could be invoked, the exclusion sought to be given effect to by this term is not limited to liability for death or personal injury so that for that additional reason s 68B(1) was not engaged. It follows that this term was rendered wholly void by 68(1).

116 Accordingly for these reasons I reject Perisher's contention that the term implied by s 74(1) was excluded by the combination of s 68B and the term(s) of Dr Nair-Smith's lift ticket. Further, those terms of the ticket which sought to exclude, limit or restrict Perisher's liability for any breach of the term so implied were rendered void by s 68. Only one of those terms purported to exclude Perisher's liability in negligence (see [114]). However, it was rendered void and, as a consequence, was not effective to do so.

117 The first and immediate consequence of the above conclusions is that Dr Nair-Smith is not contractually excluded from suing for negligence at common law and Perisher's attempt to rely on s 5N of the CLA fails. Absent authority, I would have thought that this consequence would follow from s 68(1) rendering the terms extracted in [114] void. Subsection 5N(1) (and (3)) only operates upon a "term of a contract". If s 68 operates to render the term void, then the provisions have no work to do. However, in the Court of Appeal's judgment in Insight at [104] to [106], Basten JA dealt with this circumstance as one involving a question of inconsistency under s 109 of the Constitution, reasoning as follows:

"However, where the State law purports to give effect to a term of a contract, as does s 5N(1), it will have no effect because, pursuant to s 68(1)(c), the contractual term will have been rendered void as a result of inconsistency between the State law and the Commonwealth law ...

To the same effect, s 5N(1) does not give effect to the term of a contract rendered void by s 68 of the Trade Practices Act."

118 As Spigelman CJ dissented on the question of the construction of s 74(2A) it was not necessary for his Honour to deal with this question. Sackville AJA agreed with Basten JA on the relevant questions of construction involving s 74(2A) and s 5N(1), but did not address the consequences for s 5N(1) in terms of s 109 of the Constitution expressly. His Honour stated (at [154]):

"It follows that s 74(2A) of the [TPA] does not pick up or apply s 5N(1) of the [CLA] to the contract. Clause 4 of the contract is rendered void by s 68(1)(c) of the [TPA], since it is a term of the contract that purports to have the effect of restricting or modifying the liability of the appellant for breach of the statutory warranty. "

119 Thus the difference between the view I prefer and that stated by Basten JA in Insight concerns whether, as a matter of construction, s 5N(1) purports to operate upon a term rendered void by a federal statute. My tentative view is that it does not and thus no question of any s 109 inconsistency arises between s 5N(1) and s 68. Basten JA found that it did, but s 5N(1) was rendered inoperative by s 109 of the Constitution. The distinction makes no difference to the outcome, except that his Honour's approach suggests that notices under s 78B of the Judiciary Act may need to be issued. For the reasons I will explain next, notices will need to be issued concerning a related issue. Those notices should include reference to this point and the parties will have leave to make further brief submissions on this limited question if they wish to.

120 The second consequence of the above conclusions is that the term implied by s 74(1) of the TPA survives as part of the contract between Dr Nair-Smith and Perisher, and she can sue for breach of it. However, the rejection of Perisher's contention that the term implied by s 74(1) of the TPA was excluded has a potentially far greater consequence for Dr Nair-Smith's rights than the parties appreciated. It may have that consequence that, in pursuing her case for a breach of that term, Dr Nair-Smith does not have to satisfy the various criteria in Part 1A of the CLA, and is not faced with the restrictions on damages imposed by Part 2 of the CLA.

121 Although as at July 2003, the New South Wales legislature had passed the CLA, the various amendments to the TPA which sought to complement those changes had not yet been made. As was explained by Basten JA in the Court of Appeal in Insight at [99], the critical date was 13 July 2004. On that day the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth) was given assent. This Act inserted s 74(2A). Basten JA also pointed out (at [99]) that:

"Given assent on the same day was the Trade Practices Amendment (Personal Injuries and Death) Act (No 2) 2004, No 113 of 2004, which introduced Part VIB into the Trade Practices Act. That new Part had the effect of imposing statutory caps on damages for death or personal injury arising in proceedings under the Act."

122 Neither of these sets of changes purported to have retrospective effect so as to apply to any cause of action that arose in Dr Nair-Smith's favour in July 2003. There would be good constitutional reasons for them not to (see Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; 179 CLR 297).

123 The accident at issue in Insight occurred in October 2005. In the Court of Appeal in Insight, Sackville AJA explained at [155] that s 74(2A) picked up and applied the limitations on damages imposed by Part 2 of the CLA. However that has no relevance to this case. Instead Dr Nair-Smith had a contract with Perisher that contains the term implied by s 74(1) of the TPA and, at the relevant time, that section was not qualified by s 74(2A). In those circumstances, can Part 1 of the CLA operate to limit the manner in which she establishes that there was a breach of the implied term to render services with "due care and skill" causative of loss? Can Part 2 of the CLA operate to limit the damages she may recover in respect of any such breach that she may establish?

124 There are substantial reasons for believing that the answer to both of those questions may be "no". In Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 a carrier sought to rely on a statutory provision limiting liability found within Queensland legislation to limit its liability for a breach of a contract of carriage that included a term implied by s 74(1) of the TPA. The High Court found that the warranty created by s 74(1) "carrie[d] with it full contractual liability for breach" such that any state legislation that purported to limit that liability was inconsistent and invalid to the extent of that inconsistency under s 109 of the Constitution (at 393 per Deane and Dawson JJ, at 396 per Toohey and Gaudron JJ, and at 401 per McHugh J).

125 Given that the questions identified in [123] appear to squarely raise a constitutional matter of some significance to the rights of the parties which they have not addressed, it is not appropriate that I decide these questions in the absence of further argument and the issuance of s 78B notices. Instead I will proceed to address the liability of Perisher on the basis that Part 1A is applicable before addressing a breach of the implied term. In relation to quantum I will address the medical evidence and make findings on the contested issues. I will assess quantum in accordance with Part 2 of the CLA, but provide the parties with the opportunity to address further on the appropriate award based on my findings of fact and in light of the outcome of the questions raised in [123].

(3) Negligence

126 The factual findings that I have made represent something of a mixture of the competing scenarios that were urged upon me by the parties. Perisher submitted that at the time impact occurred Dr Nair-Smith was out of alignment to the right of the chair and it had not swung back to the left. I have accepted that contention. However I have also accepted so much of Dr Nair-Smith's case that alleged a very late reaction by Mr Lofberg to the safety bar being down, and his pulling the chair back and to the left just prior to it reaching the loading point.

127 The written submissions lodged on behalf of Dr Nair-Smith adverted to the possibility of findings of this kind being made:

"If the Court is not satisfied that the accident could have occurred as stated by [Dr Nair-Smith] and her companions, it is open to the Court to find that there may have been some slight movement on the part of the [her] companions that caused her to move slightly out of alignment, and that the chair was also pulled out of its normal alignment by the lift operator. That movement on the part of [Dr Nair-Smith] or her companions would, it is submitted, be found to have been a reasonable response on the part of either [her] or her companions to the emergency situation confronting them. That situation was caused solely by the inattention and delayed response to the bar down situation by [Perisher's] lift operator."

128 As I will explain, consistent with this extract, the focus of Dr Nair-Smith's case on liability became one of inattention on the part of Mr Lofberg.

Duty of Care

129 The commencing point for any analysis of Perisher's possible liability in negligence is the existence and scope of any duty of care it owed to Dr Nair-Smith (Novakovic v Stekovic [2012] NSWCA 54 at [37] (per McColl JA, Whealy and Tobias JJA agreeing). Little attention was paid to this in the parties' written submissions. Dr Nair-Smith pleaded the scope of the duty owed as being to take "reasonable care and skill in respect of the her [sic] safety and in operating the chair and to allow her to safely utilize [sic] the chair". In its defence Perisher admitted that it occupied the ski resort pursuant to the terms of a lease and operated and maintained the chairlift. It also admitted that it owed Dr Nair-Smith "a duty of care", but not necessarily that pleaded by her, and stated that any duty was subject to the terms of the CLA, and the various terms, conditions and warnings, etc, contained in Dr Nair-Smith's ticket.

130 I have already addressed the contractual effect of Dr Nair-Smith's ticket. Leaving aside the effect of any warnings that may have been given (see [182] to [193]), there is no doubting the existence of a duty of care owed by Perisher to Dr Nair-Smith. This follows from its occupation and control of the area of the resort and the ski lift in particular. It has provided a piece of machinery for the transport of its customers, including Dr Nair-Smith. It regulated the entry into the area of the chairlift and the manner of its use. Its control over the access area to the chairlift was qualitatively different to, say, its control over areas of the ski slopes. I accept Dr Nair-Smith's formulation of the duty.

131 In considering the scope and content of that duty a number of other matters should be borne in mind. First the category of persons using the chairlift are paying guests and can include persons of different age and skiers of different ability, including beginners. That said, they are taken to be exercising a reasonable level of caution for their own safety and have a reasonable level of insight into their own abilities and limitations. The position of the chairlift is at the southern end of Perisher Resort and services only intermediate and expert level ski trails. It can be expected that mostly experienced skiers will use the chairlift.

132 Second, as a substantial piece of machinery the chairlift certainly posed a risk to persons who used it. I have already described the speed of the chair, its weight and continual motion.

133 Third, the nature of the equipment used in skiing and the configuration of the chairlift was such that there was little scope for skiers to protect themselves from any risks that might materialise during the chairlift's operations, once they had passed through the gates and were positioned at the loading point. In the ordinary course, by the time skiers have reached the loading point the next chair is adjacent to them on its downward journey and is about to enter the bull wheel. They have about 3 seconds before the chair reaches them. At the loading point they are on a raised platform of ice and must have the skis facing uphill and their poles in their hands. Thus the position of their skis and poles is such that they have little means to manoeuvre out of the way of an approaching chair. Further, at the loading point there are few places they could move to. The skiers on the side could attempt to move off to the side but that carries risks. The skier in the middle could only attempt to move forward.

134 I set out below at [143] to [146] some of the evidence concerning the position of a skier at the loading point who is faced with a safety bar that is down. While collision and injury are not inevitable, they were to my view a reasonably strong possibility if no precautions were taken. These considerations emphasise the vulnerability of a skier once they move through the gates and arrive at the loading point, and the responsibility imposed on Perisher in its operation of the chairlift especially from that time.

Breach of Duty

135 Although s 5B of the CLA is found within a Division of the CLA entitled "Duty of Care", it is instead concerned with breach (Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [13]). It provides:

"General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm."

136 The starting point for an application of this section is the identification of the "risk of harm" (see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59] per Gummow J). The plaintiff's written submissions identified that risk of harm as the risk of injury being "occasioned by a chairlift arriving at the loading station of the triple chair with the safety bar in the down position". Perisher formulated the relevant risk of harm as the risk that Dr Nair-Smith "would suffer the side rail of the chair having slipped to her labia after contacting with her buttocks ... in consequence of the time at which Mr Lofberg raised the safety bar".

137 I regard both of these formulations, especially Perisher's, as too narrowly expressed. Perisher's formulation attempts to narrow the analysis to whether it was foreseeable that a person would suffer the precise harm suffered by the Plaintiff in the precise manner alleged. Its approach is inconsistent with the common law approach and what has been adopted to this time with the CLA (see Benic v State of New South Wales [2010] NSWSC 1039 at [83] per Garling J).

138 The more appropriate description of the risk of harm for the purposes of the application of s 5B is the risk of physical harm resulting "from a chair ... arriving at the loading station in a state not suitable for boarding". This would address the possibility of a broken chair arriving at the loading station, which may not be something that can be corrected by the lift operator with the chair still in motion and which, if it continued, could cause harm to skiers in a number of different ways (see Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [24] to [25] per Meagher JA and at [123] per Tobias AJA). In the end result, whether the risk is formulated in this way or the manner suggested on behalf of Dr Nair-Smith, it does not matter.

139 The assessment of breach, whether undertaken by either applying the so called calculus set out by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 to 48 or ss 5B and 5C, must be undertaken prospectively and not retrospectively by inquiring into whether certain postulated actions could have prevented the particular plaintiff's injury (Dederer at [65] per Gummow J; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] to [128] per Hayne J).

140 In his report dated 9 October 2008 Mr Gow stated that the following concerning the propensity of chairs to arrive at the loading station with the safety bar in a down position:

"While the incidence of a restraining device in the 'down' position is very uncommon, it is an unavoidable possibility owing to the requirement to provide a balanced restraining device which requires minimal force by passengers for raising and lowering. I am instructed that the incidence of a chair arriving at the lower station with the restraining device in the down position occurs approximately once per week, or once in approximately twenty thousand chair rotations."

141 These comments certainly indicate that there is a foreseeable and not insignificant risk of the chairs arriving at the loading station with the safety bar in a down position. However, of itself that does not amount to a foreseeable risk of harm (Dederer at [61] per Gummow J). Perisher's Safety Compliance Manager, Mr David Milford, reviewed its records of reported accidents and incidents for the twenty-two year period from 1988, although there were no records for six of the years between 1989 and 1999. He identified four incidents involving the triple chair during that period. He noted that there was no record of a like occurrence to that experienced by Dr Nair-Smith, or of any significant injury at the triple chair. Even allowing for the fact that the survey was confined to the triple chair and excluded other chairs and the missing years, this is still a very low injury rate given the high usage of the chairs. However, in and of itself the absence of many reported injuries does not demonstrate that the risk of harm being suffered from chairs arriving with the safety bar down was either not foreseeable or insignificant. It may indicate that the procedures necessary to prevent the risk of injury from a safety bar being down materialising are in place and are generally effective.

142 In Dederer the fact that there had, prior to the injured person's accident, been large numbers of people jumping from the bridge constructed by the appellant into a river did not equate to there being a foreseeable risk of harm from that activity. There were no reported injuries prior to the respondent's accident in that case (at [61]). Whether the activity of jumping from the bridge resulted in injury depended, inter alia, on natural variations in the depth of the estuary beneath the bridge, a matter over which the appellant in Dederer had no control (at [62]). In this case whether the fact of a safety bar being down (or of some other defect) would or might result in injury to a skier who was already at the loading point was very much in the control of Perisher. The evidence, including Perisher's written procedures, indicated that generally that control was being exercised. However, as the material next outlined shows, physical harm could be expected to materialise from safety bars being down as chairs enter the lift station if proper control was not exercised.

143 Tendered in evidence was Perisher's "Lift Safety Procedures", which bore the date 13 November 2002. Under the heading "Lift Safety" it provides:

"7 Never have your back to the public whilst loading or unloading guests."

Under the heading "Chairs" it states:

"1 Watch for seats that may not be down (especially on windy days). Put the seats down.

2 Watch for safety bars that may be in the down position (especially on windy days). Put the bar back up.

...

4 Check for broken chair seats. If found, note the chair number and report to your Manager/Supervisor immediately."

144 Mr Lofberg was cross examined about the second entry under the heading "Chairs" in this document and his answers revealed what was otherwise obvious, bearing in mind the comments in [133] above:

"Q. Mr Lofberg, on page 2 under the heading 'Chairs', the second items [sic] says, "Watch for safety bars that may be in the down position. Put the bar back up", correct?

A. Yes.

Q. That's essential if you see a bar-down situation; isn't it?

A. Yes.

Q. Because if the chair arrives at the load point, with the bar down, then the skiers have nowhere to go?

A. Yes, they can't get on the chair if the bar is down.

Q. Can't get under the chair?

A. Yeah.

Q. Can't get over the chair?

A. Yeah.

Q. They'd simply be knocked over?

A. Yeah.

Q. Because they can't ski out of the way, can they?

A. Probably could, but they'd have to be quick."

145 Under cross examination, Mr Gow disagreed that if the safety bar stayed down the skier would be knocked down by the chair. He stated that experienced skiers could lift the safety bar themselves or allow the chair with the bar down to "push them down the ramp" which was a distance of around 5 metres. I accept that these are possibilities but they do not detract from the significant possibility or even likelihood that skiers may be injured from a collision, especially if they move, scramble or fall to the side. If that was not the case then there would be little point in Perisher giving instructions to its lift operator to be on guard for a safety bar being down.

146 Under the heading "Load and Unload Areas", the Lift Safety Procedures referred the reader to the "Lift Operators and Attendants Responsibilities and Procedures section" of the manual. This included a section entitled "Triple Chair Lift Operators Responsibilities" which specified the duties of the two operators as follows:

"There are 2 Operators.

The first Operator checks tickets and controls the passage of people allowing only 3 people onto the Load area at any one time.

The [second] Operator loads the Public.

...

The second Operator will then make sure the public are in the correct position to be loaded onto the chair.

When loading the chair, the second Operator is instructed to only bump the chair not to hold it back causing it to swing which could cause the lift to de-rail."

147 This document also instructs the operator of the top of the chairlift to "keep an eye out for bail arms that have been blown down" in windy conditions, in which case they are to telephone the bottom station.

148 The first matter that must be addressed is whether the relevant risk of harm was foreseeable by Perisher, i.e. it was a matter that was known or ought to have been known (s 5B(1)(a)). I consider that the risk of physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position was foreseen and foreseeable by Perisher. Any reasonable person familiar with the operation and layout of the chairlift would realise that, absent precautions the nature of which I will address, the arrival of chair in that state would be likely to result in injury to some of the skiers who are at the loading point facing uphill. The answers given by Mr Lofberg noted above only confirm the obvious and Mr Gow's evidence does not detract from that. Perisher's instructions to its lift operators to watch for that very contingency confirm that it appreciated that. The low level of reported incidents merely indicates that its procedures were being given effect to and were generally effective.

149 The next matter to address is whether the risk was not insignificant (s 5B(1)(b)). In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA (with whom Beazley and Tobias JJA agreed) said at [44] that the statutory test was more demanding than the common law test, "but ... not by very much". In Benic at [93]ff, Garling J discussed various decisions which have addressed this phrase, as well as the relevant parts of the final report of the Review of the Law of Negligence on that topic (the "Ipp Report"). His Honour concluded (at [101]) as follows in relation to the phrase "not insignificant":

"(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;

(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;

(c) The phrase 'not insignificant' is intended to refer to the probability of the occurrence of the risk;

(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;

(e) Whether a risk is 'not insignificant' must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula."

150 The considerations that lead me to conclude that the identified risk of harm was foreseeable also lead me to conclude that it was "not insignificant" notwithstanding the differences between the two tests.

151 The next and, in my view, critical issue is that raised by s 5B(1)(c), namely whether "in the circumstances" a reasonable person in the position of Perisher would have taken precautions against the risk of harm.

152 The statement of claim pleaded a variety of particulars of negligence which extended to such matters as an alleged failure on the part of the staff at the top of the slope to observe that the safety bar was down, a failure to provide more staff and the failure to invoke the stop button. However none of these matters were addressed in final argument and the written submissions. Instead the final forms of the "precautions" identified on behalf of Dr Nair-Smith were much narrower in scope and did not complain about the configuration or settings of the chairlift. In the written submissions lodged on her behalf they were identified as follows:

"(a) Station a lift operator at the loading point;

(b) Advise that lift operator to pay attention and be on the lookout for chairs that are not in an appropriate state for the loading of passengers;

(c) If the chair approaches with the safety bar in the down position, have the operator grasp the chair by the frame and raise the safety bar into the up position in a timely manner;

(d) 'Bump' the chair to slow the chair momentarily at the load point;

(e) Observe the passengers as they sit down in the chair safely." (emphasis added)

153 I have already described the relevant directions given to lift operators by Perisher above at [143] and [146]. To the extent that these particulars are suggestive of directions that should have been given to the lift operator they were all measures that were mostly implemented, in that one lift operator was meant to be at or near the loading point and they were meant to "[w]atch for safety bars that may be in the down position" and, if noticed, "put the bar[s] back up" (see [143]). Those directions require that an observation be made of the state of an incoming chair. The critical question in terms of what precautions, if any, were required concerns the interrelated questions of when an observation of the state of the incoming chair should be made, and what position the lift operator should be in when it is made. Both of those matters are encompassed by the italicised portion of the precautions referred to in [149] (and in turn by the particulars of negligence set out in paragraphs 9(b), 9(h)(ii) to (iv), 9(i)(ii), 9(i)(iii), 9(i)(iv), 9(l)(ii), 9(l)(iii) and 9(l)(iv) of the amended statement of claim).

154 These matters were addressed by Mr Gow in his report. Throughout his report Mr Gow assumed a set of circumstances that involved an alert lift operator lifting the safety bar in a timely manner. However I have found to the contrary. Nevertheless Mr Gow's report provides a useful consideration of what can reasonably be expected of a lift operator. Under the heading "Lift Operator Duties" Mr Gow stated that during the interval between the departure of one chair and the arrival of another the safety procedures required the operator to do the following:

"1 Observe the departing chair to ensure that its passengers were properly seated;

2 Watch passengers approaching the load point from the automatic gates;

3 Ensure that passengers are positioned at the load point;

4 Provide verbal directions and assistance to passengers as appropriate;

5 Turn to observe the next chair as it rounds the bullwheel to determine that it is in an appropriate state for the loading of passengers;

6 Grasp chair by bail (frame) both to steady and to 'bump' the chair (briefly hold back the chair to slow it momentarily at the load point);

7 Observe the passengers as they sit down in the chair;

8 Repeat the above cycle." (emphasis added)

155 Mr Gow explained the point at which an observation of the incoming chair should be made:

"In my opinion, the appropriate time for the operator to check the approaching chair to check that the restraining bar is in the correct position is when that chair is rounding the bullwheel. He is then properly positioned and easily able to raise any restraining bar that might approach in the 'down' position. A lift operator should not leave his station (in close proximity to [the] load point) in an attempt to raise a restraining bar at an earlier [point] in its progress through the station." (emphasis added)

156 This passage confirms that Mr Gow's discussion of the point when an observation should be made, namely when the chair is rounding the bull wheel, is premised upon the lift operator being "properly" positioned just in front of the designated loading point. He envisages the lift operator being able to step forward to then bump the safety bar up, as occurs in the Second Video. This suggests that an appropriate precaution is the lift operator being positioned at or very near the loading point and making an observation of the chair as it rounds the bull wheel to ascertain whether the safety bar is down (or has some other problem). If a difficulty with a chair, such as a safety bar being down, is only noticed after this point and the lift operator is located further away from the loading point such as near the exit point of the bull wheel, then their ability to deal with it is significantly compromised. They may either miss the chair or cause panic to the stranded skier at the loading point in attempting to deal with the chair. They are out of arm's reach of the stop button. In my view an observation at the exit point of the bull wheel by a lift operator at or close to the loading point must be the very last possible point that the observation can be made. It is to be remembered that before this time the skiers already waiting at the loading point are exposed in the sense that I have discussed above at [133]. Further, even if the lift operator hits the stop button at that time it will not halt the chair by the time it reaches the loading point, although it will slow it down.

157 The findings that I have made are to the effect that the "precaution" of having a ski operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bull wheel was not given effect to. Taking this precaution would have enabled Mr Lofberg to raise the bar in a "timely manner" (see [152]). If the lift operator was located further forward of the loading point then the observation needed to be much earlier. Mr Lofberg was standing no closer to the loading point than the exit point of the bull wheel and only made his "observation" after being told by Dr Nair-Smith and Mr Nowland to do so and only as the chair passed him such that he had to pull it from behind just prior to it colliding with the assembled skiers.

158 In the event that the precaution just identified was not undertaken, then the configuration of the chairlift and the position of the skiers, coupled with the frequency of the safety bars on chairs being down meant that there was a realistic prospect of physical harm being occasioned (s 5B(2)(a)). The likely harm that would be caused would no doubt be of varying degrees of seriousness, but a chair weighing 100kg travelling at the speed noted in [19] towards skiers standing upright with little room to move could obviously cause considerable damage (s 5B(2)(b)). The burden of taking the identified precaution was not significant (s 5B(2)(c)). It in effect involves the lift operator giving effect to the directions that were given by Perisher. It would not have involved the deployment of extra resources. There were competing pressures on lift operators, including those contemplated by Mr Gow's eight steps and the need to clean snow from the surface. However by the time the chair had started its journey around the bull wheel they should all have given way to the need to load the next skiers safely, which required an observation as to the state of the chair and the lift operator to be in a position to quickly respond if there was a difficulty such as a safety bar being down.

159 Sub-section 5C(a) provides that the "burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible". In this context this would only direct attention to the operation of other chairlifts operated by Perisher. It does not lead to any different conclusion.

160 Sub-section 5B(2)(d) requires that consideration be given to the "social utility of the activity that creates the risk of harm". No attention was directed to this in submissions. The activity of providing facilities for skiing, including chairlifts, is undoubtedly worthwhile. However no significant burden is imposed on the activity by adopting the precaution that has been identified. Adoption of the precaution would not have jeopardised the future pursuit of the activity. As I have stated it gives effect to Perisher's own instructions as expanded upon by Mr Gow.

161 In the end result I am satisfied that Perisher was "negligent" in the sense used in s 5B by the failure of Mr Lofberg to take the precaution identified in [157].

162 Mr Maconachie QC submitted in effect that to find that the actions of Mr Lofberg constituted negligence would be to effectively impose a standard that requires Perisher to ensure skier safety rather than exercise reasonable care in the provision and operation of lift facilities. He pointed to the narrow time period in which Mr Lofberg's actions are being scrutinised. As I have stated, the period from when the chair exits the bull wheel to the loading point is 0.78 seconds. Mr Maconachie QC pointed to the even narrower period involved when one takes into account the size of the seat of the chair, so that the time between when the chair fully exits the bull wheel to arriving at the loading point is said to be 0.56 seconds.

163 In its written submissions Perisher referred to Davis v Bunn [1936] HCA 44; 56 CLR 246. In Davis it was alleged that the driver of a truck was negligent, inter alia, because of his failure to take corrective action in response to the failure of the steering arm of his truck. The Supreme Court of Victoria overturned the jury's finding of negligence on the part of the driver. Starke and Dixon JJ upheld the Supreme Court's judgment, while Evatt and McTiernan JJ restored the jury's finding of negligence. Starke J approved the following statement of the Supreme Court (at 254):

"... it is impossible to find evidence to support a charge for negligence during that period. Reasonable care implies opportunity for reason and care. It is absurd to invite the jury to engage in a hunt for an hypothesis as to a better use of hands and feet during those agonising moments. The suggestion is that he may not have used the brakes effectively. The evidence was all one way that he did use the brakes."

164 Dixon J agreed, stating, inter alia (at 259 to 260):

"The comparison would justify a conclusion that for some reason he did not in the emergency act with the highest degree of quickness and dexterity. But it is a further step to say that, either in preparedness for an emergency or in alertness in meeting it, he did not even attain the standard of the reasonably prudent driver behaving with proper care and skill. ...

On the whole, I agree that the jury was not at liberty to find the defendant guilty of negligence in his management of the truck on the roadway."

165 These passages concern an incident in which a driver of a truck was confronted with a breakdown in the truck's steering and was unable to react in time. In contrast to the position of Mr Lofberg, it was not a primary part of the driver's functions in Davis to be ready for and guard against that very contingency. Moreover, the driver of the truck was not part of an organisation that provided a transport service to members of the public. Self evidently the driver did not have the level of control that Perisher did.

166 Most importantly, in Davis the alleged negligence of the driver was his inability to react appropriately within a very limited time period. It was that allegation of negligence which the Supreme Court of Victoria rejected and that rejection was upheld by Starke and Dixon JJ. However, the negligence in this case is not any tardiness on the part of Mr Lofberg in responding as he did when he realised the bar was down. To the contrary, his reactions were very quick. The negligence arises from Mr Lofberg placing himself in the position he was in and only noticing the bar was down so late.

167 It must be remembered that the accident did not occur in an area of the natural environment over which Perisher only had limited control. I have not found that there was anything negligent per se in the configuration and settings adopted for the chairlift or the number of staff that Perisher stationed at the loading station. However those matters were such that a very significant responsibility was imposed on the lift operator stationed near the loading point, especially from the time that skiers were located there with their skis facing uphill. In dealing with risks posed by chairs that arrived at the loading point in an unfit state for boarding, the configuration and settings of the chairlift were such that the exercise of reasonable care required the lift operator to be stationed just in front of the loading point and, at the latest, to make an observation of the state of the chair at the time of its exit from the bull wheel. Alternatively, if the lift operator was located further forward of the loading point, then the observation of the chair had to be made at an earlier time to enable the safety bar to be lifted in a timely manner. While the very narrow time periods involved are undoubtedly relevant, the fact that the lift operator has only a limited period in which to act is a product of the configuration and settings of the chair as well as the number of staff present and the directions given to skiers. All those matters are within the control of Perisher and they combine to require that the lift operator be in position and make their observation in a timely manner. Mr Lofberg's failure did not occur in the split second period that Mr Maconachie QC referred to, but before then. As the Second Video indicates, provided the lift operator is appropriately located and makes an observation sufficiently early then the contingency of a bar being down can easily be dealt with in a safe and timely manner.

Causation

168 Under the heading "Causation", s 5D of the CLA provides:

"General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

169 The test posed by s 5D(1)(a) involves a strict application of the "but for" test. This test has been described by the High Court as "entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E" (Wallace v Kam [2013] HCA 19; 87 ALJR 648 at [14]). This task eschews policy or value judgments (Wallace at [15] citing with approval Allsop P in Wallace v Kam [2012] NSWCA 82; Aust Torts Reports 82 to 101). In this case I am satisfied that, had Mr Lofberg located himself just forward of the loading point and observed the chair with the safety bar down at the point where the chair was exiting the bull wheel, then he would not have needed to lunge or dive, or grab the chair from behind (or pull it out of its alignment). Instead he could and would have addressed the chair in a manner consistent with that shown in the Second Video such that he would not have exhibited late or rushed movements and would have intervened at least a metre prior to the loading point. Dr Nair-Smith and Mr and Mrs Nowland were reasonably experienced skiers. They were used to the operation of the triple chair and others like it. Dr Nair-Smith had previously experienced the circumstance of the safety bar being down and bumped back up in time by the lift operator (see [36]). If Mr Lofberg had intervened in the correct manner then they may either have not noticed but, even if they did, I am satisfied that on the balance of probabilities it would not have resulted in a degree of panic or jostling that would have moved Dr Nair-Smith significantly out of alignment as she must have been in the events that happened. I am satisfied that the condition set out in s 5D(1)(a) has been satisfied.

170 Sub-section 5D(1)(b) requires a determination that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused. In contrast to s 5D(1)(a), this is an entirely normative assessment. In accordance with s 5D(4), it requires "consideration by a court of whether or not, and if so why, responsibility for the harm should be imposed on the negligent party" (Wallace at [14]). The only matter in this context that might warrant a negative answer to this question is the circumstance that Dr Nair-Smith was not injured following a collision between herself and the chair with the safety bar down. Instead she was injured following a collision when she fell out of alignment following either her panicked reaction or that of one of more of her friends or a combination thereof to the chair coming right up to them with the safety bar down. However in my view it follows from the characteristics of the chairlift and the vulnerability of a skier positioned at the loading line, as exemplified by the answers given by Mr Lofberg noted at [144], that this is still a circumstance that warrants the attribution of responsibility to Perisher. A panicked reaction of at least one of the skiers to a chair with its safety bar down coming so close and the actions of Mr Lofberg were, at the very least, quite foreseeable. Given the tight fit of three adult skiers first on the raised snow and then on the chair, that such consternation could lead to one of them being injured was a natural and probable outcome of the lift operator's inattention, even if the conduct of one of the skiers might have been negligent in its own right (Chapman v Hearse [1961] HCA 46; 106 CLR 112).

171 I am satisfied that the negligence of Perisher was causative of the injuries suffered by Dr Nair-Smith in attempting to board the chairlift.

Section 5I - Inherent Risk

172 Section 5I of the CLA provides:

"No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk."

173 Perisher contended that the fact that "the safety bar was down, and that it had to be rectified in 0.8 of a second ... [meant] that urgent remedial action, and the spectacle of that action being taken by the load lift attendant, was an inherent risk of the loading procedure in which [Dr Nair-Smith] was engaged" within the meaning of s 5I. However the findings that I have made to this point are to the effect that the risk that was presented by the safety bar being down was one that could have been avoided by the exercise of reasonable care and skill on the part of the lift operator. I reject Perisher's defence under s 5I.

Section 5L - Dangerous Recreational Activity and Obvious Risk

174 Section 5L is found within Division 5 of Part 1A of the CLA and "applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff" (s 5J(1)). Section 5L of the CLA provides:

"No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk."

175 I have set out the definition of "recreational activity" in s 5K above (at [85]). Section 5K also defines "dangerous recreational activity" as "a recreational activity that involves a significant risk of physical harm".

176 The phrase "obvious risk" is defined in section 5F:

"(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."

177 In its written submissions, Perisher contended as follows:

"88. The question is to define the scope of the 'recreational activity' to which the expression 'significant risk of harm' in s.5K CLA is to be applied: Fallas v Mourlas (supra) [30]:

'In determining whether a recreational activity involves a significant risk of physical harm, regard is to be had only to the activities ordinarily involved in that particular recreational activity, and not to the particular and limited activities undertaken in fact by the Plaintiff.' (Fallas v Mourlas at [34]).

89. The 'recreational activity' under consideration here is Snow Resort Skiing. This is because lifting of skiers and snowboarders to the top of the slope, avoiding them hiking, is an essential ingredient of the sport of Snow Resort Skiing. The very equipment, including the boots and skis upon which persons participate, are designed only for downhill skiing and not for hiking uphill. There are exceptions, but they are irrelevant for the present consideration.

90. There is no contest that the downhill skiing and snowboarding is a dangerous recreational activity. Combined with the significant risk of physical harm of being struck by the chair; applying the tests instructed by Fallas v Mourlas, here, the injury/harm for which the Plaintiff sues occurred as a result of the materialisation of an obvious (and indeed inherent) risk of the dangerous recreational activity of Snow Resort Skiing, and the Defendant is not liable: s.5L CLA."

178 The premise of these submissions is that the relevant activity was "Snow Resort Skiing". Upon that premise is loaded all the attended risks of skiing in order to arrive at a conclusion that the activity was dangerous. However, and no doubt it was unintended slip, the extract from the judgment of Ipp JA in Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [34] in these submissions is apt to mislead. In that paragraph Ipp JA noted that there were aspects of the CLA that supported the proposition stated, but his Honour then added (at [35]) that "there are countervailing indications". His Honour then concluded to the contrary at [50], namely that the "dangerousness (in terms of s 5L) of the recreational activity is to be determined by the activities engaged in by the plaintiff at the relevant time". Tobias JA agreed, adding that one must not only consider the "particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs" (at [92]).

179 Adopting that approach, the relevant activity was not "Snow Resort Skiing" but the process of boarding the triple chair in the presence of lift operators.

180 Assuming without deciding that this activity was a recreational activity, was it dangerous? This imposes an objective test (Fallas at [13] per Ipp JA and [136] per Basten JA). According to Ipp JA, the concept of significant risk exists somewhere between a trivial risk and a risk likely to materialise (at [18]). According to Basten JA, it requires a consideration of the likelihood of harm resulting and the level of harm that may be suffered (at [131]). Once the activity is identified in the manner stated at [179], I do not consider that it was dangerous. I have already described the characteristics of the chairlift in some detail including the weight of the chair and its speed. That said, its function is purely for transportation and it is not suggested that it was meant to provide skiers with any thrill or excitement or had any significant element of danger. The relatively low incidence of injuries that were suffered confirms this.

181 In light of this conclusion it is not necessary to determine whether the accident was the result of the materialisation of an obvious risk. I reject Perisher's defence based on s 5L.

Section 5M - Risk Warning

182 Section 5M of the CLA is also found within Division 5 of Part 1A. It provides:

"No duty of care for recreational activity where risk warning

(1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if:

(a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or

(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

(3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

(4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).

(5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

(6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.

(7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

(8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

(9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.

(10) The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or

(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

(11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.

(12) In this section:

incapable person means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning.

parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person."

183 The process of identifying the relevant "recreational activity" undertaken in [178] to [179] above by reference to the decision in Fallas is apposite to the application of s 5M; the relevant activity was the boarding of the triple chair in the presence of lift operators. Again for present purposes I will assume without deciding that this activity amounts to a "recreational activity" as defined in s 5K. Sub-section 5M(1) excludes Perisher from having a duty of care in respect of "a risk of [that] activity if the risk was the subject of a risk warning to the plaintiff". For this provision to be of any assistance to Perisher the risk referred to needs to be "a risk" that they would otherwise be liable to take precautions against, in this case the risk of a chair arriving at the loading point with the safety bar down (or otherwise in a defective state). The warning that had to be given for s 5M(1) to be invoked did not need to be specific to that particular risk but instead could have been "a general warning of risks that include[d] the particular risk concerned (so long as the risk warning warn[ed] of the general nature of the particular risk)" (s 5M(5)).

184 It is clear that to satisfy 5M the relevant communication must be a warning of something not just merely an acknowledgement of the limitations of advice being given or even an exclusion of liability (see Belna Pty Ltd v Irwin [2009] NSWCA 46 at [18] per Ipp JA).

185 A number of possible communications tendered in evidence might have constituted a warning for the purposes of s 5M(1). The first was that part of Dr Nair-Smith's lift ticket which included the following:

"ALL SIGNS MUST BE READ. By purchasing or using ... YOU ACKNOWLEDGE THAT ALPINE ACTIVITIES (INCLUDING SKIING & SNOWBOARDING) ARE RISKY AND DANGEROUS AND THAT YOU WILL UNDERTAKE SUCH ACITIVITIES AT YOUR OWN RISK."

186 This does not satisfy s 5M(1) for two reasons. First, this statement is to be found on the reverse side of a lift ticket and is in a font size just larger than 1mm. Whatever be its contractual status, without more being shown the mere printing of this notice on a ticket in this fashion does not mean that it was "given in a manner that is reasonably likely to result in people being warned" of any risk (s 5M(3)).

187 Second, the display of this statement does not mean that the "risk was the subject of a risk warning" to Dr Nair-Smith for the purposes of s 5M(1). It does not does not warn of the specific nature of the risk that I have identified; nor does it warn of the general nature of that particular risk (s 5M(5)). At its highest level of abstraction the risk in question relates to the use of chairlifts. However this warning concerns "ALPINE ACTIVITIES (INCLUDING SKIING & SNOWBOARDING)". I do not consider that an ordinary reader would treat this as referring to the use of a chairlift. Instead they would understand it to refer to the risks from actually skiing or snowboarding or some equivalent activity.

188 Another potential warning was a sign that set out the "Alpine Responsibility Code". Perisher tendered evidence that this was set out on a significant amount of signage that was exhibited both at the resort and ticket office, as well as at the various skitube access points to Perisher Valley. I am satisfied that these notices were "reasonably likely to result in people being warned" of their contents before embarking upon skiing at the resort, even if Dr Nair-Smith did not receive them or understand them (s 5M(3)).

189 The Alpine Responsibility Code relevantly provided:

"Regardless of how you enjoy your snow sport, always show courtesy to others and be aware that there are inherent risks in all snow recreational activities that common sense and personal awareness can reduce. These risks include rapid changes in weather and surface conditions, collisions with other people as well as natural and artificial hazards such as rocks, trees, stumps, bare spots, lift towers and snow-making equipment. Observe the code below and share with others the responsibility for a great experience.

1. Know your ability and always stay in control and be able to stop and avoid other people or objects.

2. Take lessons from qualified professional instructors to learn and progress.

3. ...

4. ...

5. ...

6. ...

7. Observe and obey all signs and warnings ...

8. Before using any lift, you must have the knowledge and ability to load, ride and unload safely.

9. ...

10. If you are involved in or witness an accident, alert Ski Patrol, remain at the scene and identify yourself to Ski Patrol.

KNOW THE CODE!

IT'S YOUR RESPONSIBILITY. FAILURE TO

OBSERVE THE CODE MAY RESULT IN

CANCELLATION OF YOUR TICKET OR PASS BY

THE SKI PATROL OR OTHER AUTHORISED

PERSONNEL."

(emphasis added)

190 Only the italicised portion of this communication involves the communication of a warning about a risk. However it does not satisfy s 5M(1) in relation to the risk in issue in this case for the reasons already stated in [187].

191 In its written submissions Perisher contended :

"Exhibits A1 and A2 show the pictorial instruction at the entry to the load directing passengers to look over their shoulder to watch the approaching chair. It is beyond question that [Perisher's] signage alerted [Dr Nair-Smith] to the hazards of participating in snow resort skiing, including the riding of lifts. These submissions have recounted the Plaintiff's admission of her prior experience of a passenger being hit by a chair, and on several occasions of the bar down situation."

192 Leaving aside exhibits A1 and A2, I have already addressed "[Perisher's] signage". The photos that are exhibits A1 and A2 depict a sign above the queue to board the triple chair that states "RIDING INSTRUCTIONS SKIERS & BOARDRIDERS" with two sub-headings "LOADING" and "UNLOADING". There are some further words underneath those headings that are not legible. As this submission indicates, there is then a pictorial instruction below the wording. However, neither those pictures or the legible portions of the signage contain any warning of any risk.

193 It follows that Perisher has not demonstrated that it can invoke s 5M(1) of the CLA.

Section 5R - Contributory Negligence

194 Perisher further contended that Dr Nair-Smith's own negligence contributed to her injuries. In its submissions the acts of contributory negligence on her part were identified as "her panic[ked] response and characterisation of the actions of Mr Lofberg" and "her action of moving out of alignment with the chair". The submissions also refer to the "panic which [Dr Nair-Smith], Peter Nowland and Alison Nowland engaged in".

195 To the extent that Perisher refers to the Dr Nair-Smith's "characterisation of the actions of Mr Lofberg" then, based on the findings I have made, there was nothing inaccurate in that characterisation. Otherwise I have already found that Dr Nair-Smith was out of alignment at the time she was struck by the chair. However I am not satisfied that this was the result of was any panicked reaction by her (see [66]). I have found that Mrs Nowland, at least, panicked but any negligence on her part, if there was any, cannot be attributed to Dr Nair-Smith. I have also found that Dr Nair-Smith looked around when she arrived at the loading point (see [71]).

196 Perisher has failed to discharge its onus of proving contributory negligence on the part of the Dr Nair-Smith.

(4) Breach of the Term Implied by Sub-section 74(1) of the TPA

197 I have already concluded that s 74(1) had the effect of deeming there to be an implied term of Dr Nair-Smith's contract with Perisher that the latter would provide services with due care and skill to the former, and that neither the implied term or remedies for its breach were excluded, restricted or modified by the terms written on the lift ticket. I have left open whether Part 1A of the CLA applies to the means by which liability for a breach of the implied term can be established. If it does then in my view it would nevertheless follow from the above analysis that Dr Nair-Smith has established such a breach. If it does not, then it would still follow that there was a breach and that may be the case, even if I am in error in respect of some of the above findings. For example, any contributory negligence on the part of Dr Nair-Smith would not affect Perisher's liability for a breach of contract importing the term implied by s 74(1) (Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1), and nor would the existence of any effective risk warning (cf s 5M). Accordingly I find that Dr Nair-Smith has established a breach of the term implied by s 74(1). Even if the test of causation in s 5D of the CLA was not applicable, the matters discussed in [169] to [171] would still lead to the conclusion that this breach was causative of Dr Nair-Smith's injuries.

(5) Quantum

198 Dr Nair-Smith was born in March 1959. She was aged 44 at the time of the accident and 53 at the time of the trial. She completed a medical degree at the University of New South Wales in 1983 and was thereafter employed as an intern. At the time of the accident she was working as a general practitioner in a medical practice in Kirrawee with four other doctors that included her mother. In February 1989 Dr Nair-Smith gave birth to her daughter, Nichla. In August 1992 her son, Jordan, was born.

199 In broad terms it was contended on behalf of Dr Nair-Smith that the accident on 18 July 2003 either occasioned damage to the ligaments in her sacroiliac joints or significant soft tissue injury in the lumbosacral spine. This is said to have caused her significant ongoing pain and the development of a psychiatric condition, being either post-traumatic stress disorder or a pain disorder. She alleges that it significantly restricts her functioning, including her ability to work full time, participate in recreational activities, travel, her sex life and her ability to perform household tasks.

200 Perisher denies that Dr Nair-Smith suffered any ongoing effect from the accident beyond the initial weeks following the accident during which she was off work. It also points to a significant history of pre-accident medical conditions. Its response appeared to oscillate between accepting that she is symptomatic and restricted in her activities but attributing that to long term degenerative change, asserting that she was malingering, and perhaps a combination of both.

201 To a large extent the resolution of the medical divide between the two cases turns upon whether it is accepted that Dr Nair-Smith was an honest witness genuinely recounting events, her symptoms and afflictions.

202 In that regard, the cross examination of Dr Nair-Smith concerning her medical history was lengthy and searching. It embraced a twenty year period. At times it involved an inquiry into matters very personal to her. It would have been a difficult and trying experience. That said, it should be noted the cross examiner questioned her in a manner that was respectful of both the subject matter and the witness. Further, one unusual feature of the cross examination was that Dr Nair-Smith's answers often ranged between her recounting her personal experiences and self diagnosing her medical condition.

203 Having observed Dr Nair-Smith give evidence on these topics, I should record at the outset that generally she impressed me as both highly intelligent and honest. A number of specific matters were raised concerning her credit. Those matters that I consider have or might have had significance are addressed below. Some aspects of those matters have led me to be cautious in accepting every aspect of her evidence without corroborative material.

Pre-accident Condition

204 As indicated above the extent of Dr Nair-Smith's pre-accident functioning was a significant issue in the proceedings. Accordingly, it is necessary to refer to some aspects of Dr Nair-Smith's medical history from the time of the birth of her first child in 1989 until 2003.

205 According to a neurologist, Dr Paul Darveniza, after the birth of her daughter in 1989 Dr Nair-Smith suffered a "mild neurapraxia of the obturator nerve and nerve's supply [sic] the Iliopsoas muscles". Around the time she left hospital some weeks after giving birth, a CT scan was performed. It revealed both sacralisation and fusion of the L5/S1 joint. In November 1989 Dr Darveniza noted that that there was "mild weakness of hip flexion". Dr Nair-Smith agreed that around that time she would occasionally stumble on the right leg. Dr Darveniza suggested she undertake a supervised exercise and gym program.

206 Both Dr Nair-Smith and her husband stated that the paralysis completely resolved after the birth of the first child. In 1991 Dr Darveniza reported that by November 1989 there was only "minimal weakness of hip flexion and a slight give in the right hamstrings".

207 Between June and November 1991, Dr Nair-Smith saw various medical practitioners concerning her weak pelvic floor. She was referred to Dr David Lubowski, a consultant surgeon. In November 1991 Dr Lubowski identified a "rather severe sensory and motor neuropathy affecting the pelvic floor muscles". He also reported that she likely had "para-sympathetic denervation of the left colon", although certain studies had not been undertaken to confirm it.

208 Dr Lubowski reviewed Dr Nair-Smith again in March 1992. By this time she was four months pregnant. She complained that her "neurological signs in her limbs" had worsened during her pregnancy. Her supervisor at a gym reported that she had suffered a dramatic fall in leg strength after she became pregnant. However, there was no medical evidence suggesting that she experienced any particular difficulties in the period after the birth of her son.

209 Between 1996 and the time of the accident Dr Nair-Smith's lower lumbar spine was subject to a number of reviews. In March 1996 a report on a CT scan observed that the "partial fusion defect of the left L5 laminar is again noted". Further reports in October 1996 and December 1998 did not report any significant change. The latter report noted that the "[a]ppearance of both sacroiliac joints is suggestive of sacroiliitis considered to be old".

210 In June 1999 a doctor in sports medicine reported that Dr Nair-Smith had "stiffness of sacroiliac joints". Dr Nair-Smith also complained to this doctor of increasing knee pain.

211 In March 2001 her pelvic joints were X-rayed. This revealed degenerative changes in the facet joints. In April 2001 Dr Nair-Smith attended a consultation with Dr Garvan, an orthopaedic surgeon. She advised him of a skiing incident in 1986 affecting her knee.

212 In May and June 2001 she had MRI scans performed on her knees. One of the scan reports recorded "INJURY TO RIGHT KNEE SKIING, PERSISTENT PAIN". Dr Nair-Smith did not accept that she had persistent pain for fifteen years since a skiing accident in 1986. However, she stated that she thought she hurt her left knee in that skiing accident.

213 Dr Nair-Smith also attended a number of consultations in relation to her gynaecological health prior to 2003. In 1995 she was observed to have a prolapsed cervix beyond the vulva. In March 1999 an obstetrician reported that she had "limited first degree uterine descent". She was experiencing polymenorrhagia (heavy bleeding during periods and increased frequency of period). In January 2003 she underwent a full hysterectomy. In October 2002 her obstetrician recorded Dr Nair-Smith as having inquired about the potential for the surgery to "worsen the sacral plexus injury sustained during childbirth". Dr Nair-Smith accepted that she had raised that query. With some reluctance she eventually accepted in cross examination that she had at that time "nerve damage [within her abdomen] which weakened [her] pelvic area".

214 I note three matters at this point.

215 First, at the very outset of her cross examination Dr Nair-Smith was asked and answered as follows:

"Q. ... Doctor, prior to 18 July 2003 you had suffered for some years from severe sacro-ileitis, had you not?

A. Yes.

Q. And prior to July 2003 you had complained of low lumbosacral pain radiating into the buttocks, had you not?

A. Yes.

Q. Prior to the [sic] 18 July 2003, you had had a complicated gynaecological and obstetric history, had you not?

A. Yes."

216 In my view these questions and answers fairly summarised what emerged from a detailed review of the medical material in this period.

217 Second, it was suggested to Dr Nair-Smith that her prolapsed cervix and subsequent polymenorrhagia would have substantially interfered with her sexual relations with her husband prior to the accident. Dr Nair-Smith explained that five years prior to the accident she had a Mirena IUD inserted into her uterus to control excessive bleeding. She said that as a consequence she and her husband had a healthy sex life. Her husband, Mr Smith, gave evidence to similar effect. I accept that evidence.

218 Third, as suggested by the above extract from her evidence and the medical reports, I accept that in the years prior to the accident Dr Nair-Smith suffered ongoing pain in the lower lumbosacral region as well as some pain in her knee. However this was not affecting her level of functioning. She was working long hours, taking active holidays, pursuing recreational activities and undertaking household chores. Although she referred herself to various practitioners throughout this period, it must be remembered that as a medical practitioner this was not a difficult step for her to take. Her mother did not recall her complaining of pain prior to the accident.

Post-accident Treatment

219 With the assistance of staff from Perisher, Dr Nair-Smith was taken from the top of the triple chair to the medical centre at Perisher. She was in significant pain and bleeding from her vagina. She had a split in her labia. Her pelvis was X-rayed. No fractures were revealed. She was offered an ambulance transfer to Cooma Hospital. She declined, as she preferred to see her gynaecologist in Sydney.

220 Dr Nair-Smith and her family left Perisher that night and returned to Sydney. In her first affidavit she stated that her "vagina and surrounding areas were packed in ice and combines for the trip". There was a dispute in the evidence about some aspects of Dr Nair-Smith's treatment and interaction with the staff at Perisher in the immediate aftermath of the accident and later that evening at the Perisher medical centre. I do not propose to resolve those disputes as it would not assist me in determining the substantive issues in the proceedings.

221 Dr Nair-Smith saw her gynaecologist, Dr Michael O'Connor, on 19 July 2003. He identified a "small left sided vulval haematoma measuring no more than 1cm - 1.5cm". Over this he observed a "jagged superficial abrasion medially and a slightly deeper laceration laterally". His review of the X-ray revealed "no evidence of boney [sic] injury to the pubic ramus". Dr Nair-Smith saw him again on 24 July 2003, by which time the haematoma had "settl[ed] down quite nicely".

222 Dr Nair-Smith also consulted a general practitioner at Illawong Christian Medical Centre, Dr Lynda Lee, on 21 July 2003. At this time Dr Nair-Smith was experiencing severe pain in her coccyx. Dr Lee's notes for a consultation on 21 July 2003 include the entry "had pelvic XR - had separation of pubic Sx - sore on coccyx & area of [indistinct] from pubis". Based on this entry Dr Nair-Smith was asked as follows:

"Q. Did you tell Dr Lee that a pelvic x-ray had shown a separation of the pubis?

A. Yes."

223 The fact that Dr O'Connor had told her that the X-ray had revealed it was not separated was taken up with her:

"Q. You had discussed it [the x-ray plate] with Dr O'Connor, had you not?

A. Yes.

Q. And he had told you that there was certainly no bony injury?

A. Yes.

Q. But you went to Dr Lee two days after seeing Dr O'Connor, after the discussion you had had with him about the absence of any bony injury, and you said to Dr Lee, did you not, that there had been a pelvic x-ray which showed separation of the pubis?

A. I talked to Dr Lee about pain in that pubic area and, as GPs, we discussed - we had a pelvic x-ray and we talked about pubic separation.

Q. You told her that the x-ray had - showed separation of the pubis, didn't you?

A. No."

224 The cross examination returned to this topic the next morning. Dr Nair-Smith was asked:

"Q. ... You told Dr Lynda Lee on 21 July 2003, did you not, that you had a pelvic x-ray and there was a separation of the pubic symphysis?

A. Yes.

Q. That's what you told her?

A. Yes, yes.

Q. And that was not true, was it?

A. I'm not sure about that."

225 In re-examination Dr Nair-Smith was asked what she said to Dr Lee. She stated:

"A. Dr Lee and I talked about the pain and we talked about the likelihood of a pubic symphysis separation because we were searching for causes of my severe pain."

226 These passages reveal Dr Nair-Smith contradicting herself about whether she advised Dr Lee that the X-ray had revealed separation of the pubis in circumstances where Dr O'Connor had advised her to the contrary. However I think this contradiction was only an instance of her falling into difficulties in the face of a skilful cross examiner, and does not reveal dishonest conduct on her part. The underlying point being put to her was that on 21 July 2003 she misled Dr Lee into believing that the X-ray had shown a separation of the pubis, knowing that was untrue. The contents of Dr Lee's note do not persuade me that she did so. They could be a reference to their discussing whether there had been separation despite what was revealed by the X-ray. It strikes me as inherently improbable that within two to three days of the accident Dr Nair-Smith was seeking to distort the results of investigative procedures to obtain medical opinions biased in her favour. As an experienced medical practitioner she would have known that was a futile exercise, in that at some point further X-rays could and most likely would be obtained.

227 On 29 July 2003 Dr Nair-Smith attended a physiotherapist. She told him that she had been immobilised for a week after the accident. After that time she noticed stiffness in the lumbar spine. She said that one day, after standing for an hour, she found that she could not extend her lumbar spine and experienced pain in the lower back radiating into her buttocks. It was suggested to her that this was similar to what she experienced prior to the accident. Dr Nair-Smith disagreed, explaining that this pain was "severe pain ... incapacitating. I had difficulty standing, moving and it was severe pain". Both her husband and her mother describe her as being in a virtually incapacitated state in the weeks following the accident.

228 Dr Nair-Smith saw Dr Lee the next day and her notes record the same symptoms. Dr Lee referred her to Dr Garvan, who saw her on 1 August 2003. I have already referred to aspects of that consultation above (at [76ff]).

229 On 13 August 2003 Dr O'Connor reported that Dr Nair-Smith's haematoma had almost completely resolved. On 8 August 2003 Dr Nair-Smith returned to work. I address her work history below.

230 From 6 to 12 September 2003 Dr Nair-Smith and her family travelled to New Zealand on a skiing holiday. She explained that it had been booked before her accident on 18 July 2003. Dr Nair-Smith stated that she put on her skis and boots and travelled up one slope on a T bar and was able to navigate to the bottom. She said she then stopped. Her husband said that she only skied on one morning. He estimated that she skied for an hour.

231 In January 2004 Dr Nair-Smith and her family embarked on a family camping holiday. Dr Nair-Smith stated that she sat in chair while the remainder of the family pursued activities. I address her subsequent pursuit of recreational activities and travel separately at [272] to [279].

232 In February 2004 Dr Nair-Smith injured her left shoulder while working in the garden. She had used her left arm to throw rocks.

233 In August 2004 Dr Nair-Smith commenced attending appointments with a physiotherapist, Ms Martine Shrubsole. She underwent a six week rehabilitation program for her shoulder with Ms Shrubsole. The consultation notes reveal little, if any, complaints of lower back pain by Dr Nair-Smith. I attach little weight to this as it is clear that she saw her for the specific purpose of obtaining assistance for her shoulder. Ms Shrubsole's report recites that Dr Nair-Smith gave her a full history of her lower back condition including the accident at Perisher and noted that she had continued consistent lower back pain.

234 In March 2005 Dr Nair-Smith presented to Ms Shrubsole with her chronic low back pain and pelvic instability. She reported again with lower back pain in May 2005 (and October to November 2006). Ms Shrubsole identified "marked muscle deterioration and weakness" and suggested a program for her to obtain functional strength which "[could] take as long as 12-months".

235 As noted above, Dr Nair-Smith reported for further physiotherapy in October and November 2006 with further complaints of lower back pain.

236 I have already noted that in October 2008 Dr Nair-Smith saw a physio-therapist, Ms Harkness. Ms Harkness' notes record complaints of pain and discomfort in the lower sacral region and the lower lumbar spine. They record a medical history that includes difficulties with pregnancy, sclerosis and a skiing accident. It also includes entries for "knee pain" and a reference to "poor walking". Dr Nair-Smith was asked about these entries as follows:

"Q. Did you tell her that you were having knee pain, see page 127 if you need, leading to poor walking and that the knee pain improved with walking?

A. Yes.

...

Q. In any event, what you were, were you not in October 2008, was having difficulty walking because of the knee pain?

A. No."

237 In the second answer Dr Nair-Smith refused to accept the logical implication of what she agreed in the first answer she told Ms Harkness. I observed that, as Dr Nair-Smith's cross examination continued, she became exasperated and less prepared to make appropriate concessions. I do not consider these matters as reflective of any lack of honesty on her part, but it warrants the caution I have already expressed at [203].

238 In September 2008 Dr Nair-Smith saw Dr Peter Brimage, a neurologist, for migraine headaches and affected vision. She saw him again with similar symptoms on 20 October 2008. However she was also suffering from spasms of the lower back and was in considerable discomfort. She returned to see him in November 2008. Her problems with vision remained. Dr Brimage's notes record that her back was not then in spasm but she was having difficulty extending her lumbar spine and tilting her pelvis.

239 In a handwritten letter which bore the date "10.11.08" Dr Nair-Smith wrote to Dr Peter Brimage. She thanked him for seeing her on "20.10.08". She advised him of the progress of these proceedings and referred to a mediation scheduled for 14 November 2008. The letter continued :

"I have been advised by my lawyer to obtain 'a report relating to the pain, relating it to the accident, and detailing [management] and recommendation [sic] for pain [management] (ie physio for exacerbations/hydro for maintenance). This is not a Court letter and a copy of your letter to my GP would suffice, as long as it only included information relevant to my recent episode of backpain. ... PS I need it before Friday 14.10. [indistinct]"

240 Dr Brimage produced a letter dated 31 October 2008 addressed to Dr Nair-Smith. It was entitled "To Whom It May Concern". It included the following statement:

"Dr Ghita Nair-Smith was first seen by me on 29 July 2005. She had an accident at Perisher Valley when she was struck by a chair-lift on 18 July 2003. Since that time she had had recurrent back pain."

The letter then describes her attendances on 29 July 2005 and 20 October 2008. It does not refer to her medical history prior to the accident.

241 There was some debate about whether Dr Nair-Smith's letter dated "10.11.08" was wrongly dated, in that Dr Brimage's letter of 31 October 2008 is clearly responsive to that letter. It is not necessary to resolve this. It is possible that Dr Nair-Smith's letter was wrongly dated by her but it is also possible that Dr Brimage's letter was produced in November but dated 31 October 2008. It may be a reissued version of his letter to the "GP" that Dr Nair-Smith refers to.

242 In any event Perisher points to the terms of Dr Nair-Smith's request and the absence from Dr Brimage's report of any reference to her medical history prior to the accident which included difficulties with her lower back. It submitted that Dr Nair-Smith took steps to procure a report based on only a partial history of her back condition. In cross examination Dr Nair-Smith denied that she did so. Having considered the matter, I accept her denial. Her letter to Dr Brimage asked to him prepare a report "relevant to [her] recent episode of back pain". In context this was probably a reference to excluding the migraines and vision difficulties that Dr Nair-Smith consulted Dr Brimage about rather than excluding any medical history of a back condition prior to the accident. Although Dr Brimage's report refers to the skiing accident he does not expressly attribute all or any of the pain to that accident. Instead the report is a bare factual narrative of his treatment of Dr Nair-Smith. I am not satisfied that Dr Nair-Smith appreciated in 2008 that her request had the potential to provide a medical report that was misleading, or that it did so.

243 In 2009 Ms Suzie Williams became Dr Nair-Smith's treating physio-therapist. In August 2009 she also commenced seeing Dr Jeni Saunders from "Premier Orthopaedics". In a report dated 14 October 2009 Ms Williams recounted Dr Nair-Smith's medical history as follows:

"... Dr Nair-Smith told me of her traumatic injury involving a ski lift, and the subsequent issues she has had following. This seems further complicated by a pre-history of right leg paralysis, left leg weakness and bladder and bowel dysfunction following the birth of her first child. The initial injury left [her] with some mild bladder and bowel problems, and unfortunately I feel some bad compensatory habits may also have developed. Adding to this was the ski lift accident, causing severe pain and functional reduced capacity for the past three years.

[Dr Nair-Smith] appears to have had excellent rehabilitation in the past, yet it has always been difficult for her due to pain, instability and constant aggravation of symptoms any time progression was attempted. [She] has modified her home environment, working tasks/hours and social activities in relation to the pain. Her goals now are to ski, salsa dance and exercise without pain, as well as enjoy intercourse again." (emphasis added)

244 Subject to one matter, I consider that this extract represents a good summary of those aspects of Dr Nair-Smith's medical history which are related to the accident. It identifies the skiing accident as aggravating her various conditions causing pain and contributing to a reduction in functional capacity. The one matter of exception is the reference to "three years". Dr Nair-Smith was cross examined as to whether she advised Ms Williams or Dr Saunders that she only commenced experiencing a reduction in functional capacity for three years prior to her report (i.e. 2006). She denied that that she did so and I accept that denial. The most likely explanation is that the reference to three years was meant to be to the period since the accident.

245 Since 2009 Dr Nair-Smith has continued to seek treatment from Ms Williams and pursue massage therapy and take various painkillers. Each of those matters seems to me entirely consistent with her symptoms. She has also continued to be treated by Dr Saunders and received "prolotherapy", a treatment regime I discuss below at [292].

246 Before addressing the competing medico-legal opinions, it is appropriate to outline the evidence concerning the restrictions on her functioning.

Post-Accident Functioning - Work Hours

247 In her first affidavit, Dr Nair-Smith stated that immediately prior to the accident she worked five days a week, including attending house calls and nursing homes, and every third Saturday morning. She also performed a supervisory role for the Sutherland division of a general practitioners mental health program. She stated that she did not return to work after the accident until 8 August 2003. She said that her mother acted as a locum in her place.

248 Dr Nair-Smith stated that after she returned to work in August 2003 she only worked four and half days a week. Dr Nair-Smith said that in March 2006 she reduced her workload to three days per week, being Monday, Tuesday and Thursday and, in addition, Wednesday mornings if she needed to undertake home visits. She said that her mother increased her hours from Wednesday to include a half day on Fridays. Dr Nair-Smith also said that she reduced afternoon appointments and took longer with patients. In her affidavit sworn 29 June 2012 (her "second affidavit") Dr Nair-Smith stated that her hours of work are 8.30am to 2pm and 3pm to 6pm. She said that appointments were only booked until 4.30pm.

249 Dr Nair-Smith stated that since the accident she found many of the physical aspects of general practice difficult. She instanced physical activity such as lifting children or carrying medical equipment.

250 In her affidavit sworn 16 December 2009 (her "first affidavit") Dr Nair-Smith's mother, Dr Ulita Stanley-Nair, stated that two weeks after the accident she commenced working Friday mornings in the place of her daughter. She stated that as at the date of the affidavit she was also working Wednesdays. In her affidavit sworn 13 June 2012 (her "second affidavit") she confirmed that was still the position as at that time. She described a number of alterations that were made to the office in July 2011.

251 Ms Lynette Wilson has worked in Dr Nair-Smith's practice as a receptionist and made appointments since 1993. In her affidavit sworn 16 December 2009 she recalls complaints of pain from Dr Nair-Smith and that at times she had been cranky and irritable with staff. Ms Wilson stated that Dr Nair-Smith had reduced her working hours and the days she worked in the practice. She said Dr Nair-Smith no longer worked on a Friday. She did not nominate the dates when those changes occurred. In her second affidavit sworn 13 June 2012 she also described the alterations to Dr Nair-Smith's room.

252 Affidavits to similar effect were read from Dr Nair-Smith's secretary, Ms Colleen Graham, and a former practice manager, Ms Kris Easton. They were not cross examined but the parties agreed that no submission based on Browne v Dunn (1893) 6 R 67 would be made in respect of that failure. In an affidavit sworn in December 2009, Ms Graham stated that after the accident Dr Nair-Smith reduced her working hours on Fridays to the morning "but at some point since she completely stopped working on a Friday". She stated that she was not sure when, but "[she thought] this was about 3 years ago". Ms Easton stated that after the accident she advised the staff not to book appointments for Dr Nair-Smith after 4.30pm. Ms Easton stated that Dr Nair-Smith ceased working at the practice on Fridays in December 2008. She stated that as at that time "Dr Nair-Smith was working Monday, Tuesday, Thursday and Friday mornings". She did not state for how long she worked those hours.

253 An affidavit was read from another doctor in the practice, Dr Guia Findlay. She stated that she worked in the practice prior to 2001 but then moved to the United Kingdom. She rejoined the practice in February 2005. She observed Dr Nair-Smith experiencing discomfort and having difficulty bending. She heard her complaints of pain. As at December 2009 she stated that Dr Nair-Smith "now works part time". As at that date Dr Findlay worked full days on Monday and Wednesday as well as Thursday and Friday mornings. She stated that she only saw Dr Nair-Smith on Monday evenings when they were completing paper work. She stated she saw Dr Nair-Smith's mother on Wednesday and Friday. She also asserted that Dr Nair-Smith saw a reduced number of patients compared with prior to her accident. However in cross examination it became clear that she had very little opportunity to observe Dr Nair-Smith's patient load.

254 An affidavit was read from Dr John Kim on the same basis as noted at [252]. Dr Kim worked in the practice from 2001 to 2008. Dr Kim recalled Dr Nair-Smith ceasing work around the time of her accident and resuming some weeks later. He observed her to be "emotionally fragile". He observed that she was often in pain. He noticed that Dr Nair-Smith reduced her work load and that her mother worked more shifts for her.

255 Although this evidence is confirmatory of Dr Nair-Smith reducing her hours of work since the accident, there are inconsistencies in the evidence as to what reductions occurred and when they were implemented. Dr Nair-Smith stated that in 2006 she reduced her working hours to three days a week, with house calls on Wednesdays, and that her mother then worked on Friday mornings. However, her mother stated that she commenced working Friday mornings in 2003. Even though Dr Nair-Smith said she stopped working Fridays in 2006, Ms Easton stated she was still working on Fridays in December 2008. Further, Dr Nair-Smith's assertion that she reduced her working hours to three days a week and Wednesday home visits in 2006 is difficult to reconcile with various concessions she made in cross examination including, for example, that she was working "50 or more hours a week" in October 2008.

256 Is there documentary support for Dr Nair-Smith's claimed reduction in working hours? The short answer to that question is "a little". The dispute between the parties and their respective experts over Dr Nair-Smith's past and future economic loss has a long history. At this point I am considering only one aspect of this dispute, namely whether Dr Nair-Smith reduced her work hours as a result of the injuries she sustained in the accident. The next aspect of that inquiry, namely whether those injuries were productive of financial loss, is addressed at [314]ff.

257 However the history that I have alluded to intrudes at this point. For many years Perisher has complained bitterly about, inter alia, the manner in which Dr Nair-Smith's claim was particularised and the documents that she has discovered to support it. In November 2010 it filed a notice of motion seeking, inter alia, the dismissal of so much of Dr Nair-Smith's claim that sought damages for economic loss. Fullerton J dismissed the notice of motion, but made comments critical of Dr Nair-Smith's non-compliance with previous court orders (Nair-Smith v Perisher Blue Pty Ltd [2011] NSWSC 878). At [34] of the judgment Fullerton J recorded Perisher's submission that Dr Nair-Smith had sworn a false affidavit verifying discovery but noted that there was no application before her Honour to cross examine her concerning that allegation. At [35] her Honour stated that these were "matters which can be tested under cross examination at the hearing".

258 The relevant part of the cross examination of Dr Nair-Smith at the hearing concerning the absence of records is as follows:

"Q. Can I have the letter back please. Is it the fact that in May of 2009, there were in existence daily diaries kept by the practice on an Excel spreadsheet?

A. In 2009 we were using Pracsoft so we were on Pracsoft appointment book.

Q. However it was kept, whether it was on a spreadsheet or some other description, there were daily diaries kept by those who were engaged in the practice, is that right?

A. Yes.

Q. They have never been produced, have they?

A. All the diaries, all the information that has been asked for has been produced in full. Every last bit of information you have asked for has been provided except for what was lost when we changed from Mediprac and, as I recall, the practice is not obliged to keep billing information for more than two years. We keep medical records but not necessarily the billing information. We don't have to.

Q. I want to put to you in May 2009 there were available the practice daily diaries but that it was cumbersome and time consuming and expensive to produce them. Would you agree with that or not?

A. No."

259 While the cross examiner took up with Dr Nair-Smith the topic of diary records of appointments in recent years, Perisher's submissions were directed to the failure to produce records for the years prior to the accident and the evidentiary consequences for Dr Nair-Smith's case of that failure. It contended as follows:

""In cross-examination at this hearing, the Plaintiff conceded that the Practice kept medical records of consultations preceding the change of computer system and the date of accident but not records of billings after two years [referring to the above exchange]. The Plaintiff had an obligation in August 2006, two years after the change of computer system and having commenced these proceedings, to maintain those pre-accident records of billings. The Plaintiff has never discovered records of her servicing consultations derived from the retained medical records prior to July 2004 (1 year post-accident).

...

When a party fails to comply with Court orders for the production of evidence, such as by subpoena or discovery - the consequence is not the Jones v Dunkel inference but rather the more serious consequence that the conduct can be variously describe [sic] as an implied admission or circumstantial evidence permitting an adverse inference equating to the position where there is a failure of a witness to comply with the duty of a witness to tell the whole truth: Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11 [64] per Heydon, Crennan and Bell JJ."

260 The passage from Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [64] cited in this submission refers to the failure of a party to produce documents on discovery or in response to a subpoena as follows:

"The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. But the conclusion by the trial judge that the plaintiff - a party-witness - deliberately withheld evidence reflected a stronger reaction. It operated as a finding that there had been an admission. It could be inferred that the evidence was withheld, in breach of the witness's duty to tell the whole truth in answer to the question, because the plaintiff was conscious that success in the litigation would be rendered impossible or less likely if the material withheld were revealed. Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth." (references omitted) (emphasis added)

261 This description of the circumstances giving rise to an "adverse inference" in this passage suggests that the relevant failure of a party to comply with court orders for production must be a conscious failure, being either a deliberate or reckless failure to comply. In this case the submission is solely directed to the failure to produce records prior to 1 July 2004 in respect of which Dr Nair-Smith said that a software failure meant that they could not be produced. Another doctor in her practice, Dr Findlay stated that he was told by "[the] practice manager it was a very difficult task to get [the] information [from the old system]". This limited concession does not come close to establishing any deliberate or reckless failure on the part of Dr Nair-Smith to produce records for appointments prior to 1 July 2004. I note that there was no submission made in respect of records from after that time. It follows that there is no basis for drawing an adverse inference of the type referred to in Kuhl.

262 However there still remains the question of what documentary material there is available to support Dr Nair-Smith's claims. Dr Nair-Smith bears the onus of proof in relation to any assertion on her part that her working hours have been reduced. The expert accountants retained on behalf of Dr Nair-Smith and Perisher respectively, Mr Katehos and Mr Silvia, had access to Medicare records for the 2000 to 2009 calendar years for Dr Nair-Smith and the other doctors in the practice. Mr Silvia interrogated the Medicare data closely. These experts produced two joint reports. In their first joint report they recorded that they did not have the following documents:

"i. [Dr Nair-Smith's] practice records (including appointment diaries detailing her attendance at the practice, the patients seen by her on a daily basis, including the time taken with each patient and the type of consultation the plaintiff provided) for the pre-accident period;

ii. Practice records maintained by other doctors who worked in the practice (including their appointment diaries) for the pre-accident period;

iii. Detailed practice records, including appointment diaries, for all doctors for the post-accident period (only a summary of yearly fees and patient numbers have been provided);

iv. Practice records detailing:

I. The methodology used by the practice in allocating patients to particular doctors for both pre and post-accident periods;

II. The variance in the type of services provided by each doctor in the practice over time;

III. The practice's partnership financial arrangements as it existed through time, that is, changes (if any) in individual partner's profit shares through the history of the practice, and any other factors (if any) which may influence the calculation of [Dr Nair-Smith's] profit share with regard to all other partners in the practice;

v. ...

vi. The earnings that [she] generated per hour both pre and post-accident;

vii. [Her] period of absence from the practice, whether for annual leave or personal leave, for both pre and post-accident periods (other than instructions provided to Mr Katehos); and

viii. Actual hours of work [she] worked post-accident and the type of patient consultation services she previously intended to provide on an ongoing basis (other than instructions provided to Mr Katehos)."

263 As I will explain, Mr Silvia's comprehensive analysis of the Medicare records indicates that, at least so far as Medicare billings are concerned, after the accident the nature of Dr Nair-Smith's consultations changed such that they were longer and she received more income per consultation. Medicare income appears to have represented about 88% of her total billing income. Her reported number of Medicare patients and Medicare income per year was as follows:

Year	Number of patients	Increase/ Decrease	Medicare Income ($)
2000	4,018	N/A	95,918
2001	4,473	11%	136,269
2002	4,559	2%	152,014
2003	3,765	(17%)	146,651
2004	4,172	11%	180,157
2005	3,742	(10%)	198,286
2006	3,394	(9%)	192,504
2007	3,135	(8%)	194,343
2008	3,406	9%	219,490
2009	3,231	(5%)	209,641

264 The increase in patients in calendar year 2004 compared with 2003 is explicable by reference to the time off following the accident and her hysterectomy in February 2003. The relevant change in the Medicare arrangements occurred in November 2004. This is, in part at least, relevant to the simultaneous substantial drop in patient numbers between 2004 and 2005 and the increase in Medicare income over that time span.

265 Also made available were wages records for Dr Nair-Smith's mother, Ulita. They were summarised in an annexure to one of Mr Katehos' reports. They show a definite increase in hours from 2006 consistent with her working an extra half day then as asserted by Dr Nair-Smith.

266 I accept that Dr Nair-Smith was not able to return to work until 8 August 2003 as a result of the accident. Her husband confirmed that she was bed-ridden in the weeks following the accident. I also accept that after she returned Dr Nair-Smith reduced her working hours by a half day on Friday. This is supported by the affidavits that I have referred to above at [252] to [253]. It is not inconsistent with the records that are available.

267 The more difficult issue is whether there was any further reduction in Dr Nair-Smith's hours in 2006. The records concerning the working hours of her mother suggest that she increased her working hours in that year, which could have been to compensate for a reduction in Dr Nair-Smith's hours. The drop in appointment numbers could also suggest that, but there was a similar drop in 2009. The affidavits of other workers in the practice suggest a reduction at some point but, other than Ms Graham, they are silent as to when it occurred and Ms Graham is not specific.

268 I have already referred to Dr Nair-Smith's concession in cross examination that in October 2008 she was working more than 50 hours a week. Further, in either July or October 2007 Dr Nair-Smith spent three weeks in the Northern Territory as part of a medical team undertaking what was described in the evidence as the "intervention into Aboriginal health". She described being part of a team of twelve which included five nursing staff and five army officers. Her team was located at a facility that was a twenty minute drive from Wadeye. She returned again in March 2008. On this trip Dr Nair-Smith stated that she had to restrict her lifting. She stated that she did not have the same level of assistance that she had on the first trip. Be that as it may, I do not accept that Dr Nair-Smith reduced her working hours to three or three and a half days in March 2006 but then embarked on a role with the intervention in the Northern Territory in 2007 and March 2008. I accept she reduced her hours to three days a week and the occasional Wednesday morning, but I am not satisfied that that occurred any earlier than December 2008. While I accept that her mother did increase her working days by half a day in 2006, I am only prepared to accept that such hours as she performed after 1 December 2008 were referable to her daughter's medical difficulties.

269 As it was the subject of considerable scrutiny, it is necessary to address two insurance claim forms Dr Nair-Smith lodged in November 2005. Each form made a claim in respect of the period she was off full time work in 2003. One form related to the period she stopped work following her hysterectomy in January 2003. The other form concerned the period she ceased full time work following the accident. The latter form included a question: "[w]hat is the average number of hours you worked per week over the last 12 months in this position?" To this Dr Nair-Smith answered "same", which was a reference to an answer she gave to question 31 in which she stated that she worked a 12 hour day. It was suggested to Dr Nair-Smith that she knew that this question related to the period immediately prior to the lodgement of the form, and that her answer confirmed that during 2005 she was still working at full capacity. Dr Nair-Smith disagreed, stating that when she completed the form she understood it was referring to the period prior to the period off work the subject of the claim.

270 Three matters should be noted about this. First, as at 2005 the only reduction in Dr Nair-Smith's hours related to her no longer working Friday mornings. Second, I accept Dr Nair-Smith's explanation as to how she construed the form. Read literally, the question is directed to the period prior to the lodgement of the claim form. However when read in the context of the questions that surround it, it is also clear that it is contemplated that the form will be lodged very soon after the claimant has returned to work so that the reference to the "last 12 months" will often coincide with most of the period prior to the period the subject of the claim. The question is clearly directed to enabling the insurer to verify and determine the amount payable by comparing the amount claimed with the amount of work in fact performed by the claimant in the period prior to ceasing work.

271 Third, the claim form also included a section to be completed if the claimant was partially incapacitated. It was struck through. Dr Nair-Smith explained that this was done by the insurance broker. She rejected the suggestion that this was because she was not partially incapacitated prior to 9 November 2005. She emphasised that she was only claiming from the insurer for the fixed period she did not perform any work. Thus, as she was not making a claim for partial incapacity for work thereafter from the insurer, there was no need to outline any partial incapacity that arose after she returned. I accept her explanation.

Post-Accident Functioning - Recreational Activities and Personal Relations

272 I have referred above to the skiing holiday Dr Nair-Smith and her family undertook in September 2003. In July 2005 Dr Nair-Smith and her family went on another skiing holiday to Perisher. She stated that she attempted to ski while on that holiday but struggled. She said she "went out and to the top of the mountain and came straight back down and was unable to continue". She estimated that she spent half an hour on the slopes three times during the trip. Since that time there have been a number of further skiing holidays, including shortly after July 2007 and in August 2008.

273 Both her husband, her daughter and Mr and Mrs Nowland described her restricted involvement in skiing, but not the level of adverse change described by Dr Nair-Smith. Ms Nichla Smith stated that after the accident her mother became a more conservative skier and observed her frustration at her restrictions. She said her mother would attempt to ski for an hour or so in the morning and then again after lunch. Mr and Mrs Nowland gave evidence to similar effect. Mr Smith's description of her skiing was similar, although he added that she had not skied for the last three seasons.

274 Dr Nair-Smith also described a number of camping holidays that her family embarked upon in January 2004 (see [231]), late 2004 to early January 2005, and December 2006. She said that she remained sedentary while the rest of the family pursued recreational activities including bushwalking. Her husband described her as having a modestly higher level of activity than that described by Dr Nair-Smith. He said she walked less frequently, much slower and avoided difficult terrain.

275 Since the accident Dr Nair-Smith has undertaken interstate and overseas travel involving long flights. In December 2005 Dr Nair-Smith and her family flew to Western Australia for a family holiday. In July 2006 she attended a medical conference in Africa. In April 2007 she travelled with her husband to Europe for a holiday. In late July 2007 she accompanied her husband on a trip to Cairns where he addressed a medical conference. Dr Nair-Smith stated that she found the flights difficult. Her husband confirmed this. In re-examination Dr Nair-Smith described a protocol that she adopted when travelling on long flights of using cushions and medication and having one or two days rest when she arrived at her destination.

276 Both Dr Nair-Smith and her husband described the other recreational activities, such as gardening and attending the theatre and cinema, that had been affected by Dr Nair-Smith's complaints of pain in her lower back.

277 Considered in isolation each of these matters may seem of no great significance. However in totality for Dr Nair-Smith they represent a very significant impact on her quality of life. The evidence from her and her family revealed that prior to the accident she lived a very full life characterised by long hours of work and a significant amount of holidays and recreation. Both of these were curtailed in the period following the accident and the level of curtailment has worsened since, although there is an issue about how much, if any, of that curtailment was causally related to the accident. There is no doubt that, despite her injuries, Dr Nair-Smith retains a substantial level of functioning and can still derive some enjoyment from various activities. However the assessment of loss and damage in tort and contract is undertaken by, in part, comparing the reduction in the injured plaintiff's functioning and enjoyment of life with their position previously. It does not involve a comparison with the level of holidays or recreation undertaken in the community generally.

278 In considering the degree to which Dr Nair-Smith was affected, two further matters should be noted. First, one matter consistently noted in the various medical reports is that there has been a significant effect on Dr Nair-Smith's sexual relationship with her husband. Both Dr Nair-Smith and her husband explained that her willingness to participate in and enjoyment of sex had been severely affected after the accident. In my observation it was an understandably difficult matter for both of them to discuss in a public forum. I accept their evidence on this topic.

279 Second, both Dr Nair-Smith's husband and mother describe a change in her personality since the accident. They describe her as impatient, frustrated and being angered more easily. At times she is said to be listless and depressed. This description is consistent with her experiencing ongoing pain. I accept this evidence.

Need for Assistance

280 In her first affidavit Dr Nair-Smith described her need for assistance in the immediate weeks after the accident when she was immobilised. She said that in July 2003 she and her husband engaged a cleaner. An affidavit from the cleaner, Ms Effie Callas, was also read. It confirmed that she was engaged after the accident and performs three hours of cleaning work weekly for $50.00.

281 Dr Nair-Smith also described the additional work undertaken by her husband and the family instead of her such as grocery shopping, taking out the garbage, recycling, heavy lifting, raking and mowing lawns and other garden chores. She estimated that "between them" they performed at least one hour a day of domestic duties. In her second affidavit Dr Nair-Smith stated that, as her children had now left home, her husband undertook all of the work which extended to the entirety of the gardening work. She estimated he provided her with about two to three hours per day of domestic assistance that was not required before the accident. Mr Smith's affidavit evidence was consistent with this.

282 In her affidavit sworn 13 December 2009, Nichla estimated that in 2009 she was helping her mother two to three hours per week which is consistent with her parents' estimate of the family contributing an extra hour a day. In cross examination Nichla agreed that the family paid for some assistance with the "doing of chores [and] maintaining [of] the house" prior to the accident. Her father denied this and Dr Nair-Smith did not refer to any such assistance. Perisher seized upon it as a dramatic inconsistency, but I do not agree. Nichla stated that the assistance did not involve washing, but beyond that was not pressed as to what form the assistance took. She was aged fourteen at the time of the accident and twenty-three at the time of the trial. This is the sort of detail that someone could easily be mistaken about when giving evidence. I so find.

283 I accept Dr Nair-Smith's and her husband's evidence on this issue. Overall their evidence and that of their daughter suggests an ongoing need for approximately seven hours a week of assistance from around the time that she returned to work at least up until 2009. From then their evidence suggests a need for twelve to fourteen hours a week of assistance. The increased estimate of the assistance and other matters noted above, such as Dr Nair-Smith ceasing skiing altogether, suggest that in recent years there has been a further deterioration in her functioning.

Psychiatric Evidence

284 Tendered on behalf of Dr Nair-Smith were a number of reports from a psychiatrist, Dr Thomas Oldtree Clark. Perisher tendered reports from a consultant psychiatrist, Dr Andrew McClure. These psychiatrists also prepared a joint report. Their joint report succinctly identifies their areas of agreement and disagreement. The psychiatrists recorded their agreement that Dr Nair-Smith sustained a physical injury in an accident on 18 July 2003, and had ongoing physical symptoms which had caused her to give up a number of recreational activities, and reduce her working hours. Objection was taken to this aspect of the joint report on behalf of Perisher. I am treating it as no more than assumption on their part. However it is an assumption that is borne out by my findings.

285 Both psychiatrists agreed that Dr Nair-Smith had minimal or no psychiatric incapacity for work. They both agreed that she would qualify for a diagnosis of a pain disorder, with psychological factors and a general medical condition on the basis of her extended history.

286 Dr Clark diagnosed Dr Nair-Smith as also suffering from post-traumatic stress disorder. Dr McClure disagreed with this diagnosis. The joint report provides the following summary of the reasons for their agreement and disagreement:

" Dr Nair-Smith has chronic pain and evidence of an injury. She has continued to attend medical specialists and other treating practitioners seeking diagnosis and cure without resolution of her problems. We believe that Dr Nair-Smith has become overly preoccupied with her accident, injury and disabilities to the point where psychological intervention is justified.

 In relation to Post-Traumatic Stress Disorder we agree that the original trauma/injury was painful and humiliating and induced distress. While there is no history of continuing dreams or nightmares Dr Clark feels that there are intrusive distressing recollections, but Dr McClure does not agree that these represent 'flashbacks' or that the plaintiff displays distress to a significant extent when giving a history of the original trauma. We agree that there has been some insomnia, irritability and hypervigilance. Dr McClure is not convinced that there are significant avoidant features. There is no amnesia. Dr Nair-Smith spontaneously recounts the history of injury at interview. She has returned on a number of occasions to the snowfields for family holidays, though she no longer skis for extended periods. There is disagreement whether there is any ongoing psychological effect on [Dr Nair-Smith's] relationship with her husband. Dr Clark points to reduced interest in social activities and hobbies, but Dr McClure feels that Dr Nair-Smith remains enthusiastic and motivated particularly in her work and her reduction in recreational activities results from chronic pain. We do not agree whether her affect [sic] is restricted, but she may have a foreshortened sense of her own future."

287 I make the following findings concerning this material.

288 First, I reject Dr Clark's diagnosis of a post-traumatic stress disorder for the reasons given by Dr McClure as recorded in this passage. Nothing in Dr Nair-Smith's evidence suggested that she had intrusive or distressing recollections of the accident. To my observation she did not appear to be obsessed or preoccupied with the circumstances of the incident, and recalling the accident did not seem to be especially traumatic for her.

289 Second, nevertheless and subject to the next point, Dr McClure accepted that Dr Nair-Smith suffered from a pain disorder. Dr McClure and Dr Clark described pain disorder as the state of continuing to experience significant pain even though other branches of medicine cannot identify a precise organic cause. Further Dr McClure agreed that, given the history of Dr Nair-Smith, and in particular the time that had elapsed, her prognosis in terms of recovery was poor.

290 Third, in so far as the two psychiatrists agreed on the existence and origins of the pain disorder, they both emphasised that it was dependent upon an acceptance of the medical history as provided to them either by or on behalf of Dr Nair-Smith. In particular, it is clear that this involved an acceptance that it was following the physical injury inflicted in the accident on 18 July 2003 that Dr Nair-Smith suffered a significant level of pain, and she significantly lessened her involvement in recreational activities and also reduced her working hours. It follows from the above findings that I accept that that history has been largely established.

Medico-Legal Diagnosis and Prognosis

291 As noted above, commencing from 2009 Dr Nair-Smith was treated on a regular basis by Dr Jeni Saunders, a sports and exercise physician. A "SPECT" CT scan was performed on Dr Nair-Smith on 11 September 2009. This form of scan merges the results of a single photon emission computerised tomography ("SPECT") and a computer topography ("CT") image. According to Dr Saunders this scan had "confirmed bilateral sacroiliac joint instability and failure of load transfer of the weight of the trunk" to Dr Nair-Smith's pelvis. It also revealed degenerative change in the lower lumbar spine with significant arthropathy at the L5/S1 joint. Dr Saunders expressed the opinion that:

"The accident as described is most likely to have caused some stretching and/or tearing of the dorsal interosseous ligament of the sacroiliac joint and may have occurred bilaterally as a tilt of the sacrum. I believe therefore that this blow to the sacroiliac joint region is a cause of her condition."

292 Dr Saunders has been administering a course of treatment to Dr Nair-Smith that includes "prolotherapy". It involves the injection of a thick glucose solution into a joint space for the purpose of causing irritation and the formation of scar tissue. It is anticipated that the scar tissue will contribute to the stability of the joint. As at the date of the trial Dr Nair-Smith had received five on the right side and four on the left side. She stated that it had assisted her because she can now stand on her right leg without falling over.

293 Dr Nair-Smith also tendered reports from an orthopaedic surgeon, Dr Peter Giblin. Dr Giblin saw Dr Nair-Smith in 2006, 2009, 2010 and 2011, and prepared a report on each occasion. In his first report he described the accident and her medical history and stated the following under the heading "Diagnosis":

"Based on her history and examination, she has the provisional diagnosis of a soft tissue injury to the lumbar spine, reasonably causally related to the subject accident."

294 Dr Giblin opined that it was likely that her symptoms would persist in an episodic fashion for the foreseeable future, there would be some permanent physical restriction, she would be permanently unfit for prolonged and uninterrupted periods of sitting, standing or heavy bending, lifting and twisting, and her domestic and recreational activities would also be impeded. As at 2006 he opined that she was then fit for her "current work environment", but considered it a "reasonable supposition that there will be some gradual diminution in hours worked, as her symptoms slowly deteriorate over time". Dr Giblin's subsequent reports confirm that that provisional diagnosis has became a final one. In his 2010 and 2011 reports he opined that she was fit for three days' work per week.

295 Perisher tendered reports from a consultant neurosurgeon, Dr Warwick Stening. Dr Stening confined his comments to her lumbar spine symptoms. In his report dated 11 June 2010 Dr Stening stated:

"Her lumbar spine symptoms, I believe, are related to the degenerative changes at the lumbosacral facet joints. I would defer to the opinion of an orthopaedic surgeon regarding the condition of her sacroiliac joints.

I will confine my opinion to the prognosis of her lumbosacral facet joint disease. This degenerative change has occurred at least over the last 10-15 years. This is a slowly progressive process and may lead to increased lumbosacral pain."

296 Dr Stening considered that it was reasonable for her to work a reduced number of days per week. Dr Stening did not attribute any difficulties with her lumbar spine to the accident, considering that any aggravation caused by it would have concluded some weeks or months after the accident.

297 Perisher also tendered reports from an orthopaedic surgeon, Dr David Maxwell. In his report dated 26 April 2012, Dr Maxwell rejected the suggestion that Dr Nair-Smith had instability of the sacroiliac joints, or that any difficulty with the sacroiliac joints was the cause of her having chronic back ache. He noted her complaints of pain, but found he did not consider that they had any pathological cause. He did not consider they imposed any physical restrictions on her capacity to work or engage in any physical activity.

298 Perisher also tendered a number of reports from Associate Professor Richard Jones, an expert in rehabilitative medicine. In his report dated 15 February 2012, Associate Professor Jones concluded that there was no clinical evidence of sacroiliac joint instability and did not consider that the diagnosis of any condition could reasonably be made on the basis of the results of a SPECT CT scan in isolation from a clinical assessment. He stated that there was no clinical evidence of impairment and he had no reason to believe that Dr Nair-Smith was unable to participate in recreational pursuits. He did not consider that she would now or in the future require any care on the basis of the injuries said to have been sustained on 18 July 2003. He considered that she was capable of light domestic chores and of working full time as a general practitioner for 40 hours a week, but that it would be preferable to have some assistance for heavier household chores. He identified this as resulting from degenerative change and not the accident.

299 Drs Saunders, Giblin, Stening and Maxwell gave evidence in a joint session, and Associate Professor Jones gave evidence separately. I make the following points about their oral evidence and reports.

300 First, both Dr Maxwell and Associate Professor Jones placed emphasis on their observation that Dr Nair-Smith displayed a "Trendelenburg sign" but no "Trendelenburg gait". A Trendelenburg sign is a clinical indicator of weakness either of the abductors or pelvis. It is observed where a patient stands on one leg and the pelvis drops to the other side due to a lack of strength. To compensate, the patient drops their shoulder on the side of the leg standing to stop themselves falling. A Trendelenburg gait is another clinical indicator of weakness, mainly of the pelvic abductors. It is observed in a patient when they walk. If they have a positive Trendelenburg gait on the right side then, when they place their weight on their right leg with their left foot off the ground, they will throw their body to the right in order to maintain their balance because they cannot maintain the stability of their pelvis.

301 Dr Maxwell opined that if a patient has a positive Trendelenburg sign on one side, then they will also have a positive Trendelenburg gait on the same side. Dr Maxwell observed that Dr Nair-Smith had a positive Trendelenburg sign, but no positive Trendelenburg gait. This was also observed by Dr Giblin and Associate Professor Jones. In his report of 15 February, Associate Professor Jones stated that he believed it was "an affectation" on the part of Dr Nair-Smith. In oral evidence Dr Maxwell indicated that it probably involved a "fabrication of the Trendelenburg sign" by the patient. Dr Saunders disagreed. Dr Giblin agreed with Dr Maxwell, but added the caveat that "from [his] perspective it is a red flag to look elsewhere to see if is there [sic] an alternative diagnosis or explanation".

302 However, at no time during the lengthy cross examination of Dr Nair-Smith was it suggested to her that when she attended upon Dr Maxwell or Associate Professor Jones she faked a Trendelenburg sign. It is a serious matter to make that suggestion about a party, especially a medical practitioner. I am not prepared to find that she falsely represented her symptoms to any of the doctors.

303 Second, a significant aspect of the differences between the various experts resolved into a contention as to whether or not they accepted that her various complaints and restrictions since the time of the accident were genuine.

304 In oral evidence Dr Maxwell explained that various radiological investigations such as MRI scans will only indicate the cause of back pain in a very limited class of patients, including those who have a "tumour, infection or massive central disc protrusions". He was then asked about the apparent change in Dr Nair-Smith's functioning from the time of the accident, including changes involving her work, sex life and recreational activities. Dr Maxwell initially rejected the contention that such changes had occurred, stating that "the image that [his cross examiner] present[ed] of somebody who presented suddenly with severe symptoms is not correct". The cross examiner then pressed Dr Maxwell on whether he had asked Dr Nair-Smith whether her work prior to the accident had been affected by her history of back pain relating to the birth of her second child. In answer to that question Dr Maxwell stated:

"Fundamentally, what we are talking about are symptoms of pain, the main symptom of pain leading to disability. Now studies all over the world has [sic] shown that chronic pain is a psychosocial condition. It is not a physical condition. It can't be related to any specific pathology. It is due to psychosocial factors including the social disability system; secondary gain factors.

As orthopaedic surgeons and neurosurgeons we know that people react differently when there is a secondary gain involved. We know how hard it is to get people better when they have got secondary gain involvement." (emphasis added)

305 Under further questioning Dr Maxwell agreed that the prospect of some payment from the social security system had no relevance to Dr Nair-Smith's position. He explained that the concept of "secondary gain" he was referring to in relation to Dr Nair-Smith was "the prospect of financial reward for the continuation of pain-related disability".

306 This aspect of the questioning of Dr Maxwell embodies the difficulties I have with aspects of the medical case presented on behalf of Perisher.

307 Initially Dr Maxwell indicated that he accepted she experienced pain, impairment and restrictions, but asserted that that resulted from her pre-existing conditions. Associate Professor Jones' opinion was to the same effect. However, later his opinion reduced to an assertion that Dr Nair-Smith was in effect fabricating her symptoms to obtain a payout from Perisher. This is a proposition I reject. It could not be seriously disputed that, as at the date of the accident, Dr Nair-Smith had a full professional, social and family life. The likelihood that since then she has over for nearly a decade so disrupted her life to falsely claim that she is suffering from pain and restrictions in an effort to increase her damages is extremely low. It would require her to have either deceived her family and work colleagues over a long period, or have them participate with her in perpetrating a deception upon the Court and others.

308 Third, the orthopaedic experts, Dr Maxwell and Dr Giblin, were dismissive of Dr Saunders' diagnosis of ligament damage to the sacroiliac joints. Dr Maxwell described the strength of the sacroiliac joint, including its ligaments. He pointed out that, unlike cruciate ligaments in the knee, there is a good blood supply to the sacroiliac ligaments so that any damage to them has good healing potential. Dr Giblin agreed. They and Associate Professor Jones were also dismissive of any assistance being derived from SPECT CT scans in determining instability in the sacroiliac joints. Both Dr Maxwell and Dr Giblin were also critical of the use of prolotherapy on the sacroiliac joints, considering it wholly untested and unverified. I found their evidence on this point persuasive. I do not accept Dr Saunders' diagnosis, nor do I accept that prolotherapy is an established and appropriate treatment for Dr Nair-Smith.

309 Fourth, as noted above, Perisher made a submission about the failure to call Dr Garvan and invited the Court to draw a "Jones v Dunkel inference". In this context they contended that the failure to call Dr Garvan has the result that the Court should more readily accept the opinions of Associate Professor Jones and Drs Stening and Maxwell to the effect that Dr Nair-Smith's post-accident condition was the product of the degenerative process affecting her sacroiliac joints and other structures in her low back. I do not accept that Jones v Dunkel operates in that manner in relation to expert evidence. Whether or not I accept a particular expert opinion turns upon, inter alia, the persuasiveness of the reasons provided and an assessment of the opinion against the known facts. At this point of the analysis I am deciding between the opinions of competing experts. I cannot see how a determination of whether or not I accept either set of expert opinions could be assisted by drawing an inference that a different expert who has not been called would not have assisted one of the parties, bearing in mind that I could not draw the inference that his opinion would have been adverse to that party (see [77] to [78]).

310 Once I exclude the diagnosis of Dr Saunders and have regard to my misgivings about aspects of Dr Maxwell's evidence I am left with the competing diagnoses of Drs Giblin and Stening concerning the area of the lumbar spine. Dr Giblin identified soft tissue injury, whereas Dr Stening identified the ongoing effect of degenerative changes at the lumbosacral facet joints. Consistent with what I have stated, the difficulty I have with Dr Stening's diagnosis is that it does not account for the sudden exacerbation of Dr Nair-Smith's pain and ongoing restrictions from the time of the accident in July 2003. That said, his opinion is consistent with the more recent deterioration in her condition. There was criticism made of the reports of Dr Giblin in terms of his history being inadequate. However, there was no attempt at cross examination to tackle the opinion expressed based upon those alleged deficiencies. In large part the history he recorded is consistent with what I have found.

311 In the end result, I am satisfied that Dr Nair-Smith suffered a significant soft tissue injury to her lumbar spine as a result of the accident as stated by Dr Giblin. Over time she has developed a pain disorder as referred to by Drs Clarke and McClure. The effect of the soft tissue injury was to aggravate a pre-existing level of discomfort in the lower lumbo-sacral region. Her further deterioration over the last few years is a result of the combination of the effect of the accident and degenerative changes in the lumbosacral region, however the accident remains an operative cause of that deterioration.

Non-Economic Loss - CLA

312 Section 16 of the CLA requires that I make an assessment of the severity of her non-economic loss by reference to "a most extreme case" (ss 16(1) and (3)). I have already made findings as to the position of Dr Nair-Smith prior to the accident (at [215] to [218]), her level of functioning and enjoyment of life after the accident (at [266] to [268], [277] to [279] and [283]) and the contribution of the accident to that difference (at [311]). In addition, the severe pain and trauma she suffered at the time of the accident and in the weeks that followed need to be borne in mind. Having regard to those findings I assess the severity of her non-economic loss as 25% of a most extreme case. This corresponds to an award of $34,775.00, which is equal to 6.5% of the maximum amount of damages that may be awarded (i.e. $535,000.00) (Civil Liability (Non-economic Loss) Amendment Order 2012).

Non-economic Loss - General Law

313 The parties will have the opportunity to make submissions as to the appropriate figure for general damages in the event that I find that the amounts recoverable for Dr Nair-Smith's breach of contract claim are not restricted by Part 2 of the CLA.

Economic Loss - General

314 As indicated above, both parties served reports from expert accountants attempting to identify the economic loss, if any, occasioned to Dr Nair-Smith as a result of the accident. It is appropriate that I address a number of matters arising out of their reports before first considering what amount, if any, Dr Nair-Smith can recover pursuant to the CLA for economic loss in respect of her injuries.

315 I have already found that Dr Nair-Smith's hours of working were reduced as a result of the injuries suffered in the accident. In the ordinary course, one would expect that that would affect her earning capacity, given her occupation as a doctor which is primarily directed to the earning of fees.

316 Perisher correctly submitted that damages can only be awarded for loss of earning capacity to the extent that the capacity "is or may be productive of financial loss" (Graham v Baker [1961] HCA 48; 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ). It further submitted that while the joint report of the experts to which I will refer recorded their agreement and disagreement on various matters of detail both experts agreed that "in the absence of the Practice records it is not available to them to assess over the nine years post-accident the hours worked and lost, the patient consultation fee opportunity lost, income streams through the Practice lost; and indeed whether [Dr Nair-Smith's] chance to exploit her income earning opportunity at the Practice productive of financial loss occurred at all" (emphasis added). Nothing in either of the joint reports of Mr Katehos and Mr Silvia records any agreement to the effect contended for by Perisher. Their first joint report notes the limitations on the material that was available to them, which I have referred to above at [262], but that absence does not warrant some peremptory rejection of Dr Nair-Smith's claim to have suffered economic loss.

317 Nevertheless, consistent with the criticisms noted in the judgment of Fullerton J in Nair-Smith v Perisher-Blue [2011] NSWSC 878, nowhere in any of Dr Nair-Smith's affidavits is there any explanation of the legal and accounting structure of her medical practice. Instead, buried within Mr Katehos' and Mr Silvia's reports are items of information from which one can describe it.

318 At some point the company, Ghita Nair-Smith Pty Ltd ("GNS"), was incorporated. It appears to have received all fee income generated by Dr Nair-Smith, as well as any other income that was related to her practice as a doctor. It employed Dr Nair-Smith and has paid her wages and superannuation as well as other practice expenses. From time to time GNS has also employed her mother, Ulita, and received fees generated by her. I have already referred to the fee income sourced from Medicare that was analysed by Mr Silvia. Mr Katehos' report dated 28 October 2011 refers to other sources of fee income, namely private billings, WorkCover, "third party work" (being presumably work on behalf of insurers), and fees generated by such activities as Dr Nair-Smith's work during the intervention.

319 According to the second joint report prepared by Mr Katehos and Mr Silvia, in November 2003 the practice, comprising Dr Nair-Smith and other doctors, moved to premises at 455 President Avenue, Kirrawee. These premises were owned by Drs Nair-Smith, Kim and Patel. In 2009 ownership of the property transferred to a company, 455 President Pty Ltd, whose shareholders comprised Dr Nair-Smith and four other doctors. As I indicate below, from time to time rent had been paid in respect of that property by GNS. It also appears that the medical practice utilised a management company or trust called "Kirrawee Management Services" which received management fees from members of the practice or their companies. From time to time it has distributed income to the doctors individually.

320 It is convenient to address the methodology for determining economic loss adopted by Mr Silvia first. In his report he identified it as follows:

"Economic Loss is determined by assessing [Dr Nair-Smith's] Earnings (including that of [GNS]) both prior and subsequent to the Accident. Summarily, Economic Loss, in my view, is determined in circumstances where it can be shown that, subsequent to the Accident, there was a reduction in [Dr Nair-Smitih's] Earnings as compared to that prior to the Accident as appropriately adjusted for 'Medicare CPI' and/or Australian Bureau of Statistics ('ABS') CPI increases ..." (emphasis in original)

321 Consistent with this methodology, Mr Silvia adopted Dr Nair-Smith's earnings in the financial year 2003 as the base year's earnings, and adjusted it by the various indexes he nominated for each year subsequent to the accident to 2010. Having done this, he compared it to the income she in fact generated, a matter to which I will return. He found that the latter was greater than the former and concluded that Dr Nair-Smith had not suffered any loss.

322 As formulated, Mr Silvia's description of the proper approach to the determination of economic loss is incorrect. As a matter of principle the assessment of loss does not involve a comparison of Dr Nair-Smith's earnings prior to the accident with those after the accident. Instead, and leaving aside any distinction between the concept of earnings and earning capacity, the relevant comparison is between the hypothetical earnings Dr Nair-Smith would have received in subsequent years but for the accident and those that she in fact received in the subsequent years. The approach adopted by Mr Silvia would only be correct if his method of adjusting "base year" earnings for CPI produced an acceptable proxy for what Dr Nair-Smith would have received but for the accident having occurred. However, Mr Silvia's report itself reveals that the method of adjusting Dr Nair-Smith's income for the base year earnings is not a suitable proxy for assessing the income that she would have earned.

323 In his report, Mr Silvia compares in considerable detail the type of Medicare consultations performed by Dr Nair-Smith before and after the accident. He identifies one supervening event, being the introduction in February 2004 of Medicare Item 10990. This was a bulk billing incentive item for Commonwealth concession card holders and children aged under sixteen years. Another event was the change in the premises from which the medical practice was conducted in November 2003, which may have affected the composition of the patient base.

324 In any event, based upon his analysis of the Medicare data, Mr Silvia noted that Dr Nair-Smith's consultations prior to the accident were mainly Medicare Item 23, which was a standard fifteen minute consultation. He observed that from calendar years 2003 to 2008 the number of short consultations conducted decreased, and the number of comparatively "long" and "complex" consultations, being Medicare Items 36 and 44, increased considerably. He concluded:

"The change in the 'mix' of Medicare Item consultations over the years has positively improved [Dr Nair-Smith's] Gross and Net Earnings (and [Dr Nair-Smith's] Personal Exertion Income) notwithstanding reduced patient numbers."

325 There is nothing to suggest that this change in patient mix was related to Dr Nair-Smith's accident. Dr Findlay stated that more complex appointments were usually referred to Dr Nair-Smith but there is nothing to suggest that this practice arose out of or was related to her medical condition. The change in the Medicare billing arrangements was certainly unrelated. The circumstance that Dr Nair-Smith has, since the time of the accident, been able to favourably alter her mix of patients and types of consultations is a matter that tells decisively against using her 2003 income, increased by some index, as a proxy for what her income would have been had the accident not occurred. I reject Mr Silvia's proposed basis for assessing economic loss.

326 In his reports Mr Katehos identified two bases or "scenarios" for determining the economic loss occasioned to Dr Nair-Smith by her accident, as well as a component entitled "the reduced efficiency of Ulita compared to [Dr Nair-Smith]".

327 The first scenario was one that determined the income Dr Nair-Smith would have earned but for the accident based upon the actual fees earned by "her business" in the time since the accident, and then adding those fees to the income from the working days he assumed that Dr Nair-Smith had "lost" as a result of the accident.

328 The second scenario determined the amount that Dr Nair-Smith would have earned but for the accident by assuming it would have been equivalent to that achieved by another doctor within the practice, Dr Patel, after allowing for Dr Patel's reduction in working days from five to four days per week. I do not accept that Dr Patel can be used as a useful comparator in assessing Dr Nair-Smith's economic loss. I have set out above (at [263]) Mr Silvia's analysis of the Medicare records so far as Dr Nair-Smith is concerned. Mr Silvia obtained the same data for Dr Patel. Two matters should be noted about the figures for Dr Patel when compared with those for Dr Nair-Smith. First, at all relevant times Dr Patel's patient numbers were significantly in excess of those of Dr Nair-Smith. Second, consistent with what I have stated above, over time there has been a dramatic shift in the patient mix for Dr Nair-Smith compared with that of Dr Patel. Thus, in the year 2000 the average charge for Dr Nair-Smith per Medicare patient was $23.87, and for Dr Patel was $29.62. In the calendar year 2009, the average charge per Medicare patient for Dr Nair-Smith was $64.88 compared with $53.88 for Dr Patel.

329 There remains the first scenario adopted by Mr Katehos. It strikes me as a methodology that most closely conforms with principle. Mr Katehos and Mr Silvia's first joint report records a number of objections that Mr Silvia had to the adoption of that scenario. Some of them involve his failure to apply the appropriate caps in the CLA, a matter which I address below. Others concern the absence of records to verify the hours that Dr Nair-Smith said she did not work, a matter which I have already addressed. The remaining criticism attacks the assumption implicit in Mr Katehos' approach that, on the days she would have worked but for the accident, Dr Nair-Smith would have been able to generate the same income and type of work as she did on the days she worked after the accident. However I see no reason why that assumption is not a reasonable one to adopt. Dr Findlay indicated that for the patients with more complex problems it was "hard to get an appointment to see [Dr Nair-Smith]", which was suggestive of there being sufficient demand for her services.

330 Accordingly, and subject to what follows, I accept the methodology put forward by Mr Katehos in his first scenario. However, even before one considers the application of the provisions of the CLA, his analysis will need to be revisited to address the following.

331 First, his analysis will have to be recalibrated to take into account the finding that I have made in [268] above, which is at variance with the assumption that he made, namely that from March 2006 Dr Nair-Smith was working one further day less. I have identified that date as being 1 December 2008.

332 Second, Mr Katehos' methodology for determining the hypothetical past earnings for Dr Nair-Smith involved adding back the remuneration paid to Dr Nair-Smith's mother, Ulita, as a result of her working an additional half day from March 2006. That figure will need to be recalibrated in accordance with my finding that that only occurred from 1 December 2008. Mr Katehos' figures also involve an add back of remuneration paid to Dr Nair-Smith's daughter, Nichla, from some time in 2004, apparently on the basis that she performed some tasks for her mother. I do not accept the evidentiary foundation for that contention, and it should not form part of any revised calculation.

333 Third, there was a debate between Mr Katehos and Mr Silvia about whether Mr Silvia had ignored other sources of income received by Dr Nair-Smith for the purposes of assessing her economic loss, such as the rent she received in respect of the premises. For the reasons given at [340], this debate need only be addressed in the context of considering s 12 of the CLA. In the event that it is found that Dr Nair-Smith's economic loss is to be determined unconstrained by the CLA, then the manner in which other items of income should or should not be characterised does not matter. Prima facie it is only the calculation of the lost fee income from the days she did not work that is required. Accordingly, I will consider this aspect of the debate between the accounting experts under the next heading.

Economic Loss - Civil Liability Act 2002

334 Sections 12 and 13 of the CLA provide:

"12 Damages for past or future economic loss - maximum for loss of earnings etc

(1) This section applies to an award of damages:

(a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

(b) for future economic loss due to the deprivation or impairment of earning capacity, or

(c) for the loss of expectation of financial support.

(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant's gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award.

(3) For the purposes of this section, the amount of average weekly earnings at the date of an award is:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed."

13 Future economic loss - claimant's prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

335 A number of issues were raised concerning these provisions. First, on behalf of Dr Nair-Smith a number of lengthy submissions were made to the effect that ss 12(2) and 12(3) do not operate to place an overall cap on the amount of damages that may be awarded. Instead it was submitted that they only impose a limit on the first step in determining any award for economic loss, namely the determination of what the injured claimant's past or future earnings (or earning capacity) would have been but for the accident or injury. It was submitted that, in undertaking that step, the Court should disregard any difference between the number determined and the figure denominated in s 12(2). It was contended that the next step is to determine what the actual earnings have been and will be, and the third step is to calculate the difference. It was submitted that neither the second nor third steps are constrained by s 12. On this issue, Counsel for Dr Nair-Smith was pushing an open door. Perisher did not submit to the contrary. The proposition it contended for was, in my view, accepted as a given in Fkiaras v Fkiaras [2010] NSWCA 116; 77 NSWLR 468, in particular at [43] per Tobias JA.

336 Second, it was submitted on behalf of Dr Nair-Smith that there was no necessary impediment presented by s 13 to the awarding of a lump sum for economic loss by way of a "buffer" or "cushion". Again, provided, inter alia, that the Court makes findings in conformity with s 13(1), there is no reason in principle why a buffer cannot be awarded (see Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [84] per McColl JA, with whom Mason P and Beazley JA agreed; and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [3] per McColl JA, [21] to [36] per Basten JA and [67] per Macfarlan JA).

337 However, the awarding of any such "buffer" or "cushion" must be undertaken in conformity with s 12. In particular, the reasoning that leads to the award of the cushion must not utilise a step that contemplates that, but for the accident or injury, the injured claimant's gross weekly earnings would have exceeded the amount identified in s 12(2). Instead it must be determined in a manner that conforms with the requirement of disregarding any amount that the claimant's earnings would but for the injury or accident have exceeded.

338 Against that background I will deal with past economic loss first.

339 As at the date of this judgment the amount specified in s 12(3)(a) is $1,081.20. Thus the amount relevant to s 12(2) is $3,243.60 per week, which translates to an annual income of $169,130.57 (52.14 weeks). I have already found that Mr Katehos' first scenario is the appropriate methodology for determining Dr Nair-Smith's earnings but for the accident, although I have referred to matters that will need to be revisited in determining her income but for the accident (at [331] to [332]).

340 For the purposes of applying s 12 there is need to identify whether some aspect of her income forms part of her "earnings" (ss 12(1)(a) and 12(2)). Thus, take an example where the threshold in s 12(2) is $170,000.00 and prior to an accident an injured claimant receives wages of $140,000.00 and "rent" from premises they own of $40,000.00, and after the accident the claimant receives wages of $100,000.00 and the same level of "rent", namely $40,000.00. Unconstrained by the CLA there is no reason to classify the rent. The injured claimant's loss is $40,000.00 per annum. However under the CLA the position differs. If the "rent" in this example is classified as "earnings" for the purposes of s 12(1)(a) and (2), then by the operation of s 12(2) the claimant's gross (annual) earnings but for the accident or injury is to be treated as $170,000.00 not $180,000 and they will only be found to have suffered a loss of $30,000.00 per annum not $40,000.00. The answer to this example is that if the item for rent was purely a rental return derived from the passive ownership of property, then it is not to be treated as "earnings" because that "is a reference to income earned by the exercise of the injured person's earning capacity" (Fkiaras at [46] per Tobias JA). If so, the amount will not enter into either the first stage of the calculation of loss, namely determining the earnings that would have been derived but for the accident. Nor will it be included in the second stage, namely determining what amount has been derived from their residual earning capacity after the accident (Fkiaras at [43] per Tobias JA).

341 In this case there was a debate between Mr Katehos and Mr Silvia about the characterisation of certain income that Dr Nair-Smith had received since the accident. The resolution of this debate determines whether that income should be brought to account in determining past economic loss having regard to s 12(2) of the CLA.

342 The first concerned amounts that Dr Nair-Smith personally received by way of rent for the premises for the medical practice which had been purchased by her and the other doctors prior to the accident. Prima facie, for the reasons already given, such rent should not be considered a component of post-accident hypothetical or actual earnings. However, in the second joint report Mr Silvia analysed the rent payable by GNS since 2004 to date and compared it with that payable by the other doctors. The analysis reveals that, leaving aside Dr Osborne, GNS paid substantially greater rent on the premises than Drs Patel, Kim or Findlay or their service companies. Further, Dr Nair-Smith's personal tax returns reveal that she received payments of rent in circumstances where Drs Patel and Kim did not. Thus, in the financial year ended 30 June 2007, GNS has recorded in its accounts an expense for rent of $31,700.00, and Dr Nair-Smith has recorded in her tax return rent received of $17,813.00. It may be that this represents the adoption of an advantageous tax arrangement for the payment of rent by her company and the receipt of rent by her as an individual, although this was not explored. In any event, in the absence of any attempt to explain these figures, I consider that Mr Silvia's approach of including rent received by Dr Nair-Smith as income referable to the exercise of her earning capacity in her practice as a doctor is appropriate. In substance it is only an adjustment downwards of the rental expense deducted from her gross earnings.

343 The other matter concerns distributions made by Kirrawee Management Services in the financial years ended 30 June 2005 ($11,546.00), 30 June 2006 ($7,814.00) and 30 June 2007 ($10,922.00). Although not clear, it appears that they involve the distribution of surplus amounts that have been paid out by way of management fees by each of the doctors or their companies participating in the practice. A summary of GNS's profit and loss statements reveals that for each of those years and the other years a significant amount of management fees was paid by GNS to an entity, presumably Kirrawee Management Services. However in the financial year ended 30 June 2010 GNS paid a significant amount of management fees ($42,775.00), but Dr Nair-Smith still suffered a loss of $31,942.00 by virtue of her participation in Kirrawee Management Services. This pattern of profits and losses on distribution of amounts leads me to conclude that amounts distributed by Kirrawee Management Services to Dr Nair-Smith should not be consolidated with Dr Nair-Smith's other earnings to reflect either her earnings but for the accident, or the true amount of earnings derived by Dr Nair-Smith from her earning capacity since the accident.

344 In summary, for the purpose of determining past economic loss under the CLA, it will first be necessary for Mr Katehos to recalculate Dr Nair-Smith's hypothetical earnings but for the accident taking into account the observations and findings at [266] to [268], [331] to [332] and [342]. I suspect that this will lead to a conclusion that, for most years other than possibly the financial year ended 30 June 2004, Dr Nair-Smith's earnings but for the accident would have exceeded the amount referred to in s 12(2) of the CLA. In any event, the period she was off full time work will need to be addressed separately. It will also be necessary for Mr Katehos to recalculate Dr Nair-Smith's actual earnings since the accident taking into account the finding at [342]. It seems likely, but I do not know, that that is also likely to yield figures for each of the relevant years (other than possibly the year ended 30 June 2004) that are close to or in excess of the figure referred to in s 12(2), with the likely result that only a modest sum for past economic loss is to be awarded.

345 In relation to future economic loss, it was submitted on behalf of Dr Nair-Smith that it is appropriate to award a buffer in respect of future economic loss for the following reasons:

"It may be accepted that Dr Nair-Smith presently earns above the 'cap' imposed by section 12 of the Act. It may also be anticipated that she will continue to do so for the foreseeable future. While it will be sought to make a case on her behalf that [her] injuries will ultimately prevent her from pursuing a practice as a medical practitioner, medical evidence on that point differs. There is the prospect that Dr Nair-Smith will find herself, from time to time, being unable to work, requiring perhaps increasing periods of time off work to recuperate. It must be remembered that s 12 is not concerned with average weekly earnings over a given period, but rather with 'gross weekly earnings'. In the event, therefore, that Dr Nair-Smith were required to have periods of weeks away from work from time to time, nothing in section 12 will prevent the court from awarding an amount to reflect the loss of earnings (due to a total impairment in her earning capacity during those periods) up to the capped amount. Equally, it is foreseeable that Dr Nair-Smith may, from time to time, earn some amount less than the cap in any given week."

346 The concession that Dr Nair-Smith "presently earns above the 'cap' imposed by section 12" appears to be well founded. For the financial year ended 30 June 2009 Dr Nair-Smith received wages and superannuation alone of $164,653.00 and before any adjustment of the kind just discussed. Leaving aside the balance of the submission, this concession and an acceptance that it is likely to be the case for the foreseeable future has the consequence that no amount for future economic loss can be awarded in conformity with the CLA. For the purposes of s 13(1) the "most likely" future circumstance but for the injury is that Dr Nair-Smith would have continued in her position as a doctor and earned an amount in excess of the cap provided for in s 12(2). The "most likely" course of events in view of the injury is also that Dr Nair-Smith will continue as a doctor and earn an amount in excess of the cap. Subject to what follows, a comparison of her modified hypothetical earnings with her most likely future actual earnings leads to the conclusion that she will not suffer any economic loss.

347 The difficulty with the balance of the submission extracted at [345] is that there is no evidence to suggest that Dr Nair-Smith will or even may ultimately be prevented from pursuing her practice as a medical practitioner as a result of the injuries she suffered during the accident. Moreover, there is no evidence to suggest that she will need to take periods of time off work due to any of the injuries she suffered in the accident, bearing in mind that she is currently only working three and a half days a week. It follows that, leaving aside compliance with s 13, the operation of s 12 of the CLA is such that no amount can be awarded for future economic loss.

Economic loss - General Law

348 It follows from what I have said above that the parties will have the opportunity to make submissions as to the appropriate amount(s) that should be awarded for economic loss in the event that I find that the determination of the damages payable for Dr Nair-Smith's breach of contract claim is not restricted by Part 2 of the CLA. As I have indicated, the debate about whether certain items for rent and the repatriation of management fees need to be brought to account appears to be irrelevant to that assessment.

Domestic Assistance - Past and Future - CLA

349 It follows from the findings that I have made that, as a result of the accident, 40 hours a week of gratuitous domestic assistance was provided for three weeks and seven hours a week thereafter was provided by Dr Nair-Smith's husband and family until at least 2009. No issue was taken that such assistance, if provided, constituted gratuitous attendant services for the purpose of s 15 of the CLA. Even though Dr Nair-Smith had a pre-existing condition, those services would not have been provided but for the injury, and the need for those services arose "solely" because of the injury to which the damages relate (s 15(2)(b); Woolworths Ltd v Lawlor [2004] NSWCA 209 at [28] to [30] per Beazley JA with whom Hodgson and Tobias JJA agreed). I am satisfied that there was a reasonable need for those services (s 15(2)(a)). The threshold in s 15(3) has clearly been satisfied. However the need for the further hours of service that I have noted in [283] has not arisen "solely" by reason of the injury to the which the damages relate (cf s 15(2)(b)) and under the CLA at least is not recoverable. Going forward, I will allow the claim for seven hours assistance on a weekly basis. The parties will need to quantify the amounts recoverable.

Domestic Assistance - General Law

350 Again, the parties will have the opportunity to make submissions as to the appropriate figure under this head of damages in the event that I find that the amounts recoverable for Dr Nair-Smith's breach of contract claim are not restricted by Part 2 of the CLA.

Out of Pocket Expenses

351 Dr Nair-Smith claimed past out of pocket expenses totalling $22,594.00. Perisher provided a schedule addressing each invoice. It only accepted that $5,435.90 of the past out of pocket expenses was referable to the accident, and of this amount it disputed that $1,365.99 was reasonably incurred as it related to prolotherapy. Perisher did not identify whether it accepted any of the amounts claimed for the future. Thus, the only matter of principle that was identified that was relevant to out of pocket expenses concerned Dr Nair-Smith's receipt of prolotherapy treatment, which I have addressed at [308]. As for the balance of the matters claimed the schedules provided by the parties reveal that there has been insufficient dialogue between the legal representatives concerning these items.

352 I will not attempt to resolve the dispute over these invoices at this point. The parties will need to address a number of other outstanding matters (see [356]). They will have the opportunity to reconsider the claim for these expenses in light of my findings. If significant differences remain between them, I will consider referring them to a referee for resolution.

353 Dr Nair-Smith also claimed for future out of pocket expenses. This included six physiotherapy sessions per annum, twice annual general practitioner reviews and pain killers, all of which I consider reasonable. It also includes claims for one weekly session of hydrotherapy which I allow and twice annual specialist reviews. I only allow for one annual specialist review, given that the specialists are sceptical of any improvement in her condition. The remaining and biggest item claimed for future expenses is for prolotherapy. For the reasons already stated, I reject it.

354 Dr Nair-Smith also sought an amount for past and future expenses representing the $50.00 a week paid to Ms Effie Callas. It follows from the findings that I have made that I allow this amount.

355 Dr Nair-Smith's schedule of damages also includes a claim for equipment needs of $63,083.00. There were no submissions directed to this claim by either party. As best as I can ascertain this figure corresponds with a schedule of equipment and prices set out on page 33 of a report by an occupational therapist, Dr Susan Walters, dated 21 May 2009 that was tendered on behalf of Dr Nair-Smith. In the absence of either party addressing this topic, it is not appropriate for me to guess what the evidentiary and legal basis for this claim is. I will allow the parties a further brief opportunity to address on this aspect of Dr Nair-Smith's claim.

(6) Future Progress

356 It follows that there will be a verdict for Dr Nair-Smith against Perisher. However, as a number of matters relevant to quantum remain outstanding, I cannot enter any final orders at this stage. In particular, the quantification of the amount of the verdict must await a number of further steps. In particular:

(i) it will be necessary for Dr Nair-Smith to issue notices under s 78B of the Judiciary Act 1903 (Cth), notices in relation to the matter noted in [119] and the questions noted in [123];

(ii) the parties will need to make submissions in relation to the matter noted in [119] and the questions noted in [123];

(iii) the parties will have the opportunity to prepare revised calculations of economic loss having regard to my findings at [331] and [332];

(iv) the parties will have the opportunity to prepare revised calculations of past economic loss recoverable in the event the CLA applies (see [344]);

(v) the parties will have the opportunity to prepare revised calculations concerning the various heads of damages in the event that I find that Dr Nair-Smith's damages are not restricted by Part 2 of the CLA (see [313], [348], [350]);

(vi) the parties will need to confer in relation to the outstanding amounts claimed for past out of pocket expenses (see [352]);

(vii) the parties will have the opportunity to address the claim for equipment needs (see [355]); and

(viii) the parties will need to bring in figures reflecting the final calculations of damages on the basis that the CLA does apply and on the basis that it does not.

357 These matters will need to be addressed before questions of costs can be determined.

358 To enable the parties the opportunity to consider these matters, I will stand the proceedings over for further directions before me at 9.30am on 27 June 2013. I so order.

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Decision last updated: 07 June 2013