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[2026] QSC 26
General information, not legal advice.
Supreme Court of Queensland
2026-03-05
Copley J
Original judgment source is linked above.
TORTS - NEGLIGENCE - STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH - GENERALLY - where the plaintiff was a tow truck driver employed by the first defendant - where the plaintiff attended to tow a bus owned by the second defendant - where the plaintiff was under the bus when it rolled forwards off two wooden blocks and the spare tyre came into contact with the plaintiff's body - where the plaintiff suffered significant injuries to his internal chest area - where the first defendant admits breach of duty - where the second and third defendants deny any liability on the part of the second defendant - whether the second defendant was negligent
TORTS - NEGLIGENCE - DAMAGE AND CAUSATION - CAUSATION - AT COMMON LAW - GENERALLY - where the injuries suffered by the plaintiff were caused by the handbrake of the bus owned by the second defendant being released - where the plaintiff told the second defendant that the handbrake must stay on - where the second defendant contends he did not release the handbrake - where there is no direct evidence that the second defendant released the handbrake - whether the evidence establishes, on the balance of probabilities, that the second defendant released the handbrake
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - RISK OR LIABILITY - BY, THROUGH OR IN CONNECTION WITH MOTOR VEHICLE - where the plaintiff was under a bus owned by the second defendant when it rolled forwards off two wooden blocks and the spare tyre came into contact with the plaintiff's body - whether the personal injury suffered by the plaintiff was caused by, through, or in connection with a motor vehicle under s 5 of the Motor Accident Insurance Act 1994 - whether the third party is liable to indemnify the second defendant
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - GENERALLY - where the injuries suffered by the plaintiff were caused by the handbrake of the bus owned by the second defendant being released - where the plaintiff did not check to confirm the handbrake was on before he went under the bus - whether the plaintiff failed to take reasonable care for his own safety - whether the failure of the plaintiff to confirm the handbrake was on was mere inattention or inadvertence
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - GENERALLY - where quantum of damages are disputed between the plaintiff and the first defendant and between the plaintiff and the second and third defendants - where the first defendant had a defective system of work - where the second defendant failed to abide by instructions from the plaintiff - whether the first defendant and second defendant are equally culpable - whether damages should be apportioned equally between the first defendant and the second and third defendant - whether evidence establishes market rate for services for future care
Law Reform Act 1995 (Qld), s 6
Motor Accident Insurance Act 1994 (Qld), s 4, s 5, s 52
Transport Accident Act 1986 (Vic), s 94
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Carey-Schofield v Hays & Civeo [2024] QSC 60
Cootes v Concrete Panels & Ors [2019] QSC 146
Goodsir v Al-Ko International Pty Ltd [2002] QSC 191; (2002) 35 MVR 321
Green v Hanson Construction Materials Pty Ltd [2007] QCA 260; (2007) Aust Tort Rep 81-907
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89
Jewell v Tyre Marketers (Aust) Ltd (2000) 31 MVR 27
Joslyn v Berryman (2003) 214 CLR 552
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306
Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) Aust Tort Reports 81-949
Reddock v ST&T Pty Ltd & Anor [2022] QSC 293
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 350
Seltam Pty Limited v Gharleb [2005] NSWCA 208
Shaw v Menzies [2011] QCA 197
Suncorp Metway Insurance Ltd v Sichter [2010] QSC 164; [2011] 2 Qd R 89 Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd & Ors [2012] QSC 237; (2012) 61 MVR 534
Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45
The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6
Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited [1999] QCA 386; [2000] 2 Qd R 682
Van Gervan v Fenton (1992) 175 CLR 327
K S Howe and S Sullivan for the second and third defendants
Quinlan Miller & Treston for the second and third defendants
[1] Early on the afternoon of Sunday 11 August 2019, the second defendant was driving his motor vehicle, a Mitsubishi bus, which was registered in Victoria, along the Burnett Highway near Ban Ban Springs. Upon noticing a warning light inside the bus he stopped it in a truck lay-by adjacent to the highway, got out and observed oil about the rear of the bus where the engine was. He sought assistance. The plaintiff, a tow truck operator employed by the first defendant, was directed to attend. Upon reaching the bus and following an inspection of the engine area it was agreed between the plaintiff and the second defendant that the bus would have to be towed to a mechanic's premises. While the plaintiff was under the bus preparing to attach the towing device to the bus it rolled forwards off two wooden blocks and the spare tyre under the bus came into contact with the plaintiff's body. Significant injuries were occasioned to his internal chest area.
[2] Pursuant to the Further Amended Statement of Claim the plaintiff alleged that: (i) the first defendant was negligent and was in breach of its duty of care to the plaintiff; (ii) the second defendant was negligent and in breach of his duty of care to the plaintiff; and, (iii) the third defendant was liable for the damage caused by the second defendant pursuant to s 52(4) of the Motor Accident Insurance Act 1994 (Qld).
[3] At the commencement of the trial, the first defendant admitted breach of duty in that it did not have in place a system of work which required the plaintiff to apply the handbrake of the vehicle to be towed and also to chock the wheels of the vehicle to be towed. The first defendant conceded its breach of duty caused the injuries the plaintiff alleged. The first defendant's case was there was contributory negligence. The quantum of damages is in issue.
[4] The plaintiff's case against the second defendant was that within s 5(1) of the Motor Accident Insurance Act the plaintiff's personal injuries were the result of the driving of the bus[1] or the result of the bus running out of control[2] caused by a wrongful act[3] of the second defendant. By the time of the trial the plaintiff's case against the third defendant was that it was liable as the relevant compulsory third party insurer for the second defendant's actions pursuant to either s 52(4) of the Motor Accident Insurance Act or s 94 of the Transport Accident Act 1986 (Vic).
[5] The second and third defendants denied any liability on the part of the second defendant. Any personal injuries caused by, through or in connection with the bus were not the result of either the driving of the bus[4] or the bus running out of control.[5] Any personal injuries suffered were not caused wholly or partly by a wrongful act in respect of the bus by the second defendant.[6] In the event liability was established the defendants asserted contributory negligence. The quantum of damages is in issue.
[6] The first defendant seeks contribution from the second and third defendants. These two defendants seek contribution from the first defendant. Also, the second defendant commenced a third party proceeding claiming the second defendant is entitled to indemnity from the third party if he is held liable for any injury to the plaintiff.
[7] Accordingly, the following issues arise for determination.
[8] Whether the plaintiff can prove that the second defendant released the handbrake on the bus prior to the plaintiff getting under it to attach the towing mechanism. The case against the second defendant depends upon the Court first being satisfied that he released the handbrake. The second defendant did not suggest the plaintiff released the handbrake.
[9] Even if the second defendant did release the handbrake, whether the plaintiff's case comes within s 5(1)(a) and (b) of the Motor Accident Insurance Act 1994 (Qld).
[10] Whether the third party is liable to indemnify the second defendant.
[12] Whether there was any contributory negligence.
[13] How any liability should be apportioned between the defendants.
[15] The second defendant had owned the bus for approximately seven years. The handbrake had been operating effectively. The second defendant said that even when the bus was left in neutral the handbrake was effective to prevent it moving.[7] It was a ratchet handbrake which was engaged by pulling the lever up. After he stopped the bus in the lay-by the second defendant applied the handbrake, put the bus in neutral, left the engine running and got out to inspect the engine area. After he saw oil in the area of the engine he turned the engine off. The bus remained "out of gear" then. The second defendant was adamant that he had applied the handbrake because it was his normal procedure to do so when he stopped. He said over two hours elapsed between when he stopped in the lay-by and when the plaintiff arrived in his tow truck.
[16] I accept the second defendant's evidence that he applied the handbrake when he stopped the bus.[8] I also accept his evidence that this was his practice. I accept both aspects of this evidence because it accords with what could be expected that a driver of a vehicle would do. It accords with common sense.
[17] A camera positioned on top of the tow truck cabin recorded footage of the tow truck being reversed, some of the movements of the plaintiff and second defendant around the outside of the bus, the movement of the towing arm and the movement of the bus. The camera also recorded footage of the interior of the bus in the area of the driver's seat. The footage tendered in evidence commenced at 16:20:32 and ended at 16:36:58.
[18] The plaintiff's evidence was as follows. Upon arriving at the lay-by he reversed the tow truck close to the front of the bus. He asked the second defendant to show him where the engine was. Oil was visible outside the engine and more oil was visible when the second defendant opened the engine covering. It was obvious the vehicle required towing. The plaintiff noticed that the body of the bus was sitting very close to the tyres and so he asked the second defendant to point out the air connection point which he could utilise to inflate the suspension system prior to towing the bus.
[19] The plaintiff positioned the tow truck T-bar so that it was just under the front of the bus. He caused the T-bar to raise the bus slightly. He heard a noise of "metal to metal" which signified that the bus was staying in place, that the back wheels were not moving. He lowered the bus back onto the ground. The plaintiff asked to be shown the controls for the airbags, brakes and lights. The second defendant entered the bus through the doorway which was positioned on the passenger side about halfway between the front and back of the bus. The second defendant went forwards to the area where the driver's seat was and the plaintiff stood on a step or at the top of the steps which led up from the doorway. The plaintiff said he had a clear view down the hallway to the front of the bus. He could see the steering wheel and the driver's seat. He saw that the ratchet handbrake was in the "on" position, it was in a raised position. A ratchet brake indicated to the plaintiff that his assumption the bus had airbrakes was incorrect. The second defendant pointed out where the lights were.
[20] The second defendant said, "Do you want me to release the handbrake before we leave?". The plaintiff said "No. Definitely not. The hand - handbrake - the brakes must stay on. It's the ... it's the last thing we take off before we leave". He said, "my life depends on it". He said he had to get under the bus to do certain tasks and to remove the tail shaft prior to it being secured onto the back of the tow truck. The second defendant's wife was in the back of the bus when the plaintiff provided this explanation. She spoke to the plaintiff and he engaged in some brief conversation with her. After that the plaintiff left the bus and the second defendant and his wife left right behind him.
[21] When shown some photographs extracted from the footage time stamped 16:31:53 which depicted the plaintiff with the second defendant at the door of the bus, the plaintiff said that they were discussing whether the bus was to be locked. The plaintiff said the second defendant wanted to lock the bus as it was going to go to the repairer. The plaintiff said he told the second defendant he needed access to the bus after he had completed connecting it to the tow truck in order to release the brake and put the lights on before he left with the bus.
[22] The plaintiff returned to the tow truck and reversed it closer to the bus to allow the T-bar to move behind the front axle of the bus. He used the T-bar to raise the bus so that he could position cube-shaped wooden blocks under each of the front wheels of the bus.[9] He had used these blocks of wood for this purpose on many occasions. After both blocks were centered under the wheels he put two forks under the bus. The forks had to be attached to the T-bar. The plaintiff got under the passenger side of the bus and using a remote control device secured around his neck, he lowered the T-bar enough to be able to insert the forks into the T-bar. He then lowered the bus some more so that the front wheels rested on the blocks. The bus then rolled forwards[10] and everything went black. The part of the underside of the bus which housed the spare wheel came to rest on the plaintiff's chest - abdomen. After about 15 or 20 seconds the plaintiff was able to get his hand onto the remote control device and raise the bus sufficiently to allow him to get out from under it.
[23] The second defendant brought him a towel. As he knelt beside the plaintiff the second defendant said, "I thought you wanted the brakes let off." The plaintiff said he made no reply. He asked the second defendant to fetch his mobile phone which was inside the tow truck. Once provided with the telephone he called his employer to tell them what had occurred.
[24] The plaintiff said that the process he had been instructed to use when towing a vehicle was to either apply the handbrake of the vehicle which had to be towed or to chock the wheels of the vehicle. The process did not involve adopting both measures. The plaintiff had no recollection of a police officer, Senior Constable Nugent, attending the scene.
[25] The second defendant's evidence was that after the engine area had been inspected attention was given to the air suspension. He and the plaintiff walked around the bus looking for the point where the air suspension was located. Not having previously experienced a breakdown with the bus, the second defendant did not know where the air suspension point was. The plaintiff said he would be able to find it. They then went inside the bus so that the plaintiff could see the controls, the handbrake, footbrake and whether there were airbrakes. The second defendant showed the plaintiff where the handbrake was located. Assisted by looking at the footage, he said he bent down and indicated the handbrake to the plaintiff. The second defendant's wife was in the bus packing some possessions they needed to take with them in their car.
[26] Everyone then left the bus. The plaintiff asked about the door and the second defendant told him it had to be secured in a particular way and showed the plaintiff how that was to be done. The second defendant and his wife got into their car and as the second defendant was about to drive off he noticed the bus roll off the blocks. He turned the car engine off and got out and asked the plaintiff what he could do to get the bus off him. The plaintiff said he needed his remote control device. It was behind the plaintiff's head and out of his reach so the second defendant reached in and brought it around to where the plaintiff's hand was. The plaintiff used it to raise the bus.
[27] The second defendant said he spoke with the plaintiff to try to keep him calm. His wife had difficulty getting a call through to the ambulance and the plaintiff told him to get a phone out of the tow truck. The second defendant fetched the phone and gave it to the plaintiff. The plaintiff telephoned his employer and told someone what had occurred and asked for an ambulance. When asked if there had been any conversation concerning releasing the handbrake at any stage the second defendant said no. He also denied he ever told the plaintiff that he had released the handbrake. The second defendant's evidence was that he did not release the handbrake.
[28] The second defendant said he had two conversations with Snr Const Nugent. He approached the police officer and asked if he wanted a report from him about what had occurred. Nugent said no, it was not a police issue. Later in the afternoon Nugent approached him and asked him what he had seen. The second defendant said he explained to Nugent how the bus had been sitting, that it had rolled forwards as he was about to drive away and that he then assisted the plaintiff.
[29] At this point it assists to record what I find the footage showed about some of the protagonists' movements. It showed the second defendant standing inside and at the front of the bus to the left of the driver's seat. He was present there from 16:29:56 to 16:30:31. He was the only person depicted in the footage at these times. The footage did not depict anyone else either inside the bus or proximate to the driver's seat before or after the second defendant was beside it. It showed that during the time when the second defendant was standing beside the driver's seat he bent down with his left arm extended toward the floor of the bus. The footage did not capture what, if anything, he did with his left arm or hand. He then bent down again but it was not possible to see whether he extended either arm. The plaintiff and the second defendant can be seen outside the bus at 16:31:27. The plaintiff went under the bus at 16:34:25. The bus moved forwards at 16:34:40.
[30] Snr Const Nugent gave evidence that when the plaintiff was being treated at the scene by the ambulance officers, he asked him what had occurred. Counsel for the plaintiff was careful not to elicit from Nugent what the plaintiff actually told him. Such evidence would have been hearsay. Nugent said that later in the afternoon he spoke with the second defendant. Counsel for the plaintiff asked Nugent what the second defendant said. Nugent said he commenced his conversation with the second defendant by informing him that the plaintiff had said he had told the bus driver to leave the brake on. Then, as the second defendant provided Nugent with his account of the incident, Nugent made notes of what the second defendant told him as the second defendant spoke. By reference to his notes, Nugent said the second defendant stated, "I was breaking down and the tow truck driver lifted the bus up with the remote. He put two chocks of wood under each front wheel to keep the bus off the ground so he could get underneath. My vehicle was parked back to the side. When we had the bus up, I asked him if he was all right as I was going to leave. He was standing up. Then I saw him lay down under the vehicle, and I was beginning to leave when I saw the bus move, roll backwards off the chocks onto him. I jumped out of the car and I asked him to get the bus off. He told me that he had his remote and he lifted the bus off with the remote. The truck driver knew that the bus was in neutral and that the handbrake wasn't on. At no time did the truck drive (sic) place chocks behind the rear wheels. I would guess that the bus was on him for about 30 seconds to a minute."
[31] Nugent said he had not recorded his conversation with the plaintiff in his notebook.
[32] The second and third defendants submit that on all the evidence, the Court cannot be satisfied the second defendant released the handbrake, primarily because he said he did not do so in the context of his evidence that "common sense" required the handbrake remain on while the plaintiff was under the bus. It was submitted that the second defendant presented as an honest and credible witness who maintained under cross-examination that he did not release the handbrake. There was no direct evidence from the plaintiff capable of proving he did so. Also, an explanation or hypothesis which remained open on the evidence, which explained the movement of the bus and was consistent with the second defendant's denial he had released the handbrake, was that the handbrake had not been fully applied by the second defendant when he stopped the bus and got out to check the engine.
[33] The possibility the handbrake had only been partially engaged was said to be open because the plaintiff accepted that when he was in hospital after the accident he told Mr Loury, an industrial inspector, that when he went into the bus to check the brakes the handbrake "appeared" to be activated, that it was not "fully up" but it still appeared to be "up enough". Further, two mechanical engineers, neither of whom had examined the bus or the wooden blocks or been to the scene but had watched the footage of the incident, gave evidence about the behaviour of the handbrake. Mr Carnavas said it would have been possible for the bus to move off the blocks if the ratchet handbrake had only been partially engaged but very close to the off position. However, he would not expect it to have moved if the brake had been close to the fully on position. Mr Kahler said if the handbrake had been partially on, there was a chance the bus could move off the blocks.
[34] I am satisfied that when the second defendant applied the handbrake upon stopping the bus, he applied it to the extent it was fully engaged for the following reasons. First, this was the second defendant's evidence. I accept it because it accords with a prior statement he had made relevant to this issue. His evidence was: Question: "... so the last time you left the motorhome - say that the handbrake was engaged; that is correct?" Answer: " --- I - correct, yes." Question: "It was up so, it was fully engaged, correct?" Answer: " --- It was up, yes." Question: "And it was fully engaged, that is, it was enough in your experience, to ensure that the vehicle wouldn't move?" Answer: "--- I believe so, yes". In a statement provided to an industrial inspector, dated 20 December 2021, the second defendant stated: "I showed [the plaintiff] how the handbrake was operated, and I believe that I would have had it applied at this time. During the time [the plaintiff] and I spoke about the brakes, hand brake and the air suspension the motorhome was not raised off the ground. As such, if the handbrake had not been applied the motorhome would have rolled which it did not". Second, Mr Carnavas said that if the handbrake had been fully applied at the time of the incident then, if roadworthy, the bus would not have moved off the blocks. Mr Kahler said that on the assumptions the handbrake was fully functioning and the front wheels were on level blocks then the bus would not move if the handbrake was fully applied. The evidence of these persons tends to support the correctness of the second defendant's evidence and out of court statement. It was not in dispute that the handbrake of the bus was in proper working order.[11] Third, the plaintiff's evidence, which I accept, was that he heard the metal on metal sound when he initially raised the bus signifying to him that the handbrake was applied.
[35] The second defendant is correct that there is no direct evidence that he released the handbrake. The plaintiff did not give evidence he saw the second defendant release it. Although he acknowledged that on 20 September 2019 in a Notice of Accident Claim Form he asserted "after I exited the vehicle the owner let the handbrake off" and acknowledged that on 27 August 2021 in a Notice of Claim for Damages to WorkCover he asserted the second defendant "released the handbrake" and also that footage of the incident showed the second defendant "releasing the handbrake", he conceded he never saw the second defendant release the handbrake when they were both on the bus.
[36] The plaintiff's case that the second defendant released the handbrake was based on a number of circumstances. One circumstance was that the second defendant was the only person who had the opportunity to release the handbrake, and the footage which showed this opportunity also showed the second defendant made a movement with his arm consistent with contact with the handbrake. Another circumstance was that the second defendant said to the plaintiff "I thought you wanted the brakes let off", which amounted to an admission he had released the handbrake. Another circumstance was that the second defendant told Nugent the plaintiff knew the handbrake was not on. He thereby effectively admitted to Nugent he had released the handbrake. Another circumstance was that Nugent observed the handbrake was off after the plaintiff had been evacuated. The case that the second defendant knew the importance of the handbrake remaining on and that it was released by the second defendant without the plaintiff's knowledge, relied on the evidence of the plaintiff about the discussion of the importance of the handbrake remaining on, the second defendant's evidence that there was a discussion about the handbrake and the second defendant's admission "I thought you wanted the brakes let off".
[37] The second defendant argued that if he had in fact released the handbrake the plaintiff could not have failed to have seen him do so, given the plaintiff's proximity to where the second defendant was when they were on the bus, yet the plaintiff's evidence was that he did not see this occur. The plaintiff's evidence of the admission he alleged had been made to him should not be accepted in view of a number of considerations. They were: the plaintiff had represented in the claim forms he had seen things when in truth he had not and this attenuated his credit generally; no reference was made to the second defendant's alleged admission in either claim form and these omissions bore directly upon the veracity of the plaintiff's account about the statement he claimed the second defendant had made. The suggestion put to the plaintiff was that he was making it up as he went along. Nugent inaccurately noted two important details about what the second defendant had told him. First, as the bus clearly rolled forwards when the plaintiff was under it, Nugent wrongly noted that the second defendant said it rolled backwards. The second defendant would never have said the bus rolled backwards when it rolled forwards and the second defendant gave evidence denying he told Nugent it had rolled backwards. Second, Nugent was wrong when he claimed the second defendant said "The truck driver knew the bus was in neutral and that the handbrake wasn't on". The second defendant denied he said this to Nugent. His evidence was he would have said the vehicle was in neutral but the handbrake was on. More generally though, Nugent's note keeping was unsatisfactory because he did not make any note of what the plaintiff had told him about what the second defendant allegedly said to the plaintiff. Further, no reference was made by the plaintiff in the claim form of 20 September 2019 to there having been any discussion on the bus about what was to be done with the handbrake.
[38] I reject the second defendant's evidence that he did not release the handbrake because the circumstances relied on by the plaintiff raise a more probable inference which I regard as reasonable and definite[12] in favour of the second defendant having released the handbrake subsequent to the plaintiff's observation of it, despite having been told by the plaintiff it was to remain applied.
[39] The footage shows that it was only the second defendant who went to the front of the bus after the second defendant and the plaintiff got onto the bus. The footage shows no one else went to the front of the bus after the second defendant left it. Therefore, he was the only person with the opportunity to release the brake. The footage shows that the second defendant made a bodily movement consistent with a movement towards the handbrake. The plaintiff's failure to see him do so may be explained by his distraction when he was spoken to by the second defendant's wife who was at the back of the bus and to the plaintiff's right. I am satisfied the second defendant said "I thought you wanted the brakes let off" after the bus rolled because I accept the plaintiff's evidence as truthful. The statement made by the second defendant constitutes an admission that he had released the handbrake. I am satisfied he would not have made this statement which is adverse to his interests unless it was true. The plaintiff's evidence this was said is consistent with the detail the plaintiff provided to Mr Tuite, a representative of the first defendant, when Mr Tuite visited him at the hospital on the evening of 11 August 2019. The plaintiff informed Mr Tuite, "The customer was standing beside the bus and in a panicked voice he said 'I thought you wanted the handbrake released'". The plaintiff's assertion to Mr Tuite that the second defendant said this on the evening of the day of the accident rebuts the suggestion of recent invention. I do not consider that failures to mention this statement in the claim forms completed subsequent to 11 August 2019 detract from the plaintiff's credit. I am satisfied the second defendant told Nugent that "The truck driver knew that the bus was in neutral and that the handbrake wasn't on". I accept Nugent's evidence this was what was said by the second defendant because he made contemporaneous notes of what the second defendant told him. For the same reason I accept Nugent accurately recorded what the second defendant said about the direction of movement. Having arrived after the accident, there is no basis to think Nugent's reliability was in any way affected by anything he observed or had been told. Nugent said he accurately wrote down what the second defendant said and I accept the truthfulness of this. His notes about what the second defendant said were extensive. The accuracy of his notes was only contradicted in two respects, being the direction of the movement of the bus and what the second defendant said about what the plaintiff knew concerning the gear and handbrake. In the aftermath of the second defendant having observed an undoubtedly shocking event it is quite conceivable he mistakenly described which way the bus rolled. Accepting as I do Nugent's evidence that the second defendant said that the plaintiff knew the bus was in neutral and that the handbrake was not on, I conclude the second defendant effectively admitted to having released the handbrake when he spoke with Nugent.
[40] In being satisfied the second defendant released the handbrake I have not relied on Nugent's evidence about the state of the handbrake when he looked at it because no evidence was adduced relevant to the integrity of the scene prior to Nugent's arrival. Before Nugent made the observation he had to go out onto the highway to stop the traffic to enable a helicopter to land and no evidence was adduced relevant to the integrity of the scene while he was occupied doing that.
[41] I accept the plaintiff's evidence that while he and the second defendant were on the bus there was a discussion about the handbrake and the position it was to remain in until the plaintiff was ready to release it. It accords with common sense that the plaintiff would have been concerned to ensure the handbrake was not released as his safety under the bus depended on the brake staying on. It accords with the evidence given by Nugent under cross-examination where he said the plaintiff stated he told the second defendant to leave the handbrake on. Also, the second defendant said their purpose in going inside the bus was for the plaintiff to see the controls, which included the handbrake, and that they would have discussed the handbrake. His evidence supports the conclusion they discussed what the plaintiff was concerned to look at and that the plaintiff gave the second defendant the instructions about the handbrake. Nugent provided a satisfactory explanation about why he did not write down what the plaintiff told him. His explanation was that although he asked the plaintiff what had happened he did not want to take the plaintiff's version of the incident because he thought it was unfair to do so when he was receiving medical treatment.
[42] I do not consider the points made about what the plaintiff included in the claim forms should cause me to doubt the truthfulness of his account.
[43] Based on what he called the second defendant's "apology" to him as he was lying on the road, the plaintiff said he assumed the second defendant had released the brake and he thought the footage would show this to be the case. He said he had not seen the footage when he provided the information in the claim forms.
[44] His failure to listen for the metal on metal noise when he raised the bus again after he got out of the bus was because he had previously heard it and seen the brake on. This was a reasonable explanation.
Does the case fall within s 5 of the Motor Accidence Insurance Act?
[45] Section 5 of the Motor Accident Insurance Act relevantly provides:
(1) This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury -
(ii) a collision, or action taken to avoid a collision, with the motor vehicle; or
(iii) the motor vehicle running out of control; or
(iv) a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
(b) is caused, wholly or partly, by a wrongful act or omission in respect of the motor vehicle by a person other than the injured person."
[46] The second and third defendants submitted that whether the plaintiff's injuries were the result of the driving of the bus and/or the bus running out of control required consideration of whether or not the circumstances involved the bus "in its capacity or function as a motor vehicle".[13] At the time the bus rolled off the blocks it had broken down and was being prepared for towing by the plaintiff, the person in charge of the recovery of the bus, and it was not being used in its capacity or function as a motor vehicle. Also, release of the handbrake could not be construed as "driving" the bus. The movement of the bus was not related to any action of the second defendant to control it by driving it. The "driving" of a motor vehicle required by s 5(1)(a)(i) of the Act is to be understood as referring to the consequences of the actual operation and control of the direction and speed of a vehicle and there had to be a causal connection between the plaintiff's injuries and some feature of the driving.[14] There was no movement in the traditional sense of "driving",[15] the bus was stopped and not able to be driven.
[47] As to the plaintiff's case the bus was running out of control, the second and third defendants argued s 5(1)(a)(iii) of the Act was not satisfied because the movement of the bus from the blocks had no connection at all to its use or operation as a motor vehicle. Reliance was placed on Jewell v Tyre Marketers (Aust) Ltd[16] which involved an application for leave to bring proceedings against an insurer where a plaintiff proposed to rely on s 5(1)(a)(ii), a collision with a motor vehicle. The motor vehicle fell off a hoist at a tyre fitter's workshop and injuries were caused to a tyre fitter. Ambrose J dismissed the application because "liability for injury resulting from a collision with a motor vehicle relates to a liability resulting from use of that motor vehicle qua motor vehicle and not a liability for injury sustained in the course of the mere repair or servicing of that vehicle which does not involve using it as such".[17]
[48] In response to these contentions counsel for the plaintiff was content to adopt the submissions made by counsel for the third party. Counsel for the third party submitted that assuming the second defendant was proven to have released the handbrake, the circumstances in which the plaintiff's injuries were suffered were indisputably the result of the bus "running out of control".[18] The bus was out of control because no one was controlling its movement as it moved forward off the blocks. It was moving therefore it was "running". It was immaterial how far it travelled or how fast it travelled. Where reliance is placed on a motor vehicle running out of control whether the vehicle was incapable of being driven or was not operating "qua a vehicle" was irrelevant. Counsel referred to Goodsir v Al-Ko International Pty Ltd, where in the course of refusing an application for summary judgment Mullins J (as her Honour then was) said:[19]
"... s 5(1)(a)(iii) can apply when the motor vehicle is not being driven. A simple example of a motor vehicle running out of control, but not operating under motive power, is a motor vehicle parked on the downward slope of the hill, where the handbrake has not been properly applied, and the motor vehicle runs out of control down the hill."
[49] In adopting the submissions of the third party the plaintiff did not maintain the case that his injuries were the result of the driving of the bus. I would not have concluded that the act of releasing the handbrake constituted the driving of the bus, especially in circumstances where the engine had not also been turned on.
[50] However, in my view, a vehicle is running out of control if it is moves when there is no one in a position either to steer the movement or inhibit the movement by applying the brakes. That was the position when this bus moved off the wooden blocks.
[51] In Townsville Trade Waste Davies JA said:[20]
"Of the four subparagraphs of s. 5(1)(a), three of them, par. (i), par. (iii) and par. (iv) appear to be limited in their operation, not only to an injury which results from the functioning of a motor vehicle as a motor vehicle but to one which results from the movement of a motor vehicle as a motor vehicle. The critical subparagraph, subpar. (ii), is not restricted in its operation to an injury resulting from a collision with a moving vehicle; but the question is whether it is, like the other subparagraphs, restricted to an injury resulting from a collision with a vehicle (whether moving or stationary) in its capacity or function as a motor vehicle. The learned primary judge held, in effect, that it was; as his Honour put it, 'qua a vehicle'."
[52] In my view, the plaintiff's injuries resulted from the bus running out of control in its capacity or function as a motor vehicle. The plaintiff was engaged in performing actions which were prerequisites to towing the motor vehicle behind the tow truck. The bus was to be moved from the lay-by to a repair facility and the movement depended upon the rear wheels of the bus traversing the highway, hence the concern about the suspension level. Merely because the bus could not move under its own motive power did not render its functioning to be other than as a motor vehicle at the time the injuries were occasioned. It was a motor vehicle which needed assistance to move as a motor vehicle moves by its wheels revolving over the surface of the road. Movement of the bus to the repairer depended on one of the attributes of a vehicle - the ability of it to traverse a road. I consider that the plaintiff's case falls within s 5(1)(a)(iii) of the Act.
[53] The second and third defendants submitted that s 5(1)(b) required a relationship between the motor vehicle and the very act which gives rise to liability.[21] A "wrongful act or omission" can include a negligent act or omission[22] but is not confined to a common law cause of action, it extends to liability to pay damages created by statute.[23] Absent a finding that the second defendant released the handbrake there could be no relationship between the bus and any act of the second defendant's which gave rise to liability for the plaintiff's injuries. In this scenario the plaintiff's injuries would not be caused wholly or partly by another person, so s 5(1)(b) was not satisfied.
[54] I have already found that the second defendant released the handbrake. There is an obvious relationship between the bus and the release of the handbrake. The second defendant's act was wrongful for the reasons set out below at paragraph [56]. Accordingly, s 5(1)(b) is satisfied.
Is the third party liable to indemnify the second defendant?
[55] The third party was joined by the second defendant on the basis that the third defendant might not have been liable to indemnify the second defendant in the event it was held the plaintiff's case did not come within s 5 of the Act. However, the position ultimately adopted by counsel for the second and third defendants was that if s 5 of the Motor Accident Insurance Act was satisfied, the third defendant would be liable to indemnify the second defendant in respect of any liability he is found to have for the plaintiff's injuries pursuant to s 94 of the Transport Accident Act 1986 (Vic).[24] As I have found that s 5(1)(a)(iii) and (b) is satisfied, the third party notice will be dismissed. The third party is not liable to indemnify the second defendant because s 94 of the Transport Accident Act relevantly provides that the third defendant is liable to indemnify the owner of a registered vehicle in respect of any liability in respect of an injury caused by or arising out of the use of the vehicle in Victoria or in another State.
[56] The second defendant effectively conceded that he owed the plaintiff a duty of care.[25] The plaintiff has proved to my satisfaction that the second defendant owed a duty of care to him to avoid a foreseeable risk of injury to him. The risk was the risk of serious personal injury or death if the handbrake of the bus was not applied when the plaintiff was under the bus attaching the towing mechanism. The plaintiff has proved that the second defendant failed to exercise reasonable care when he released the handbrake without informing the plaintiff. I am satisfied that the second defendant's negligent act of releasing the handbrake was a cause of the plaintiff's injuries.
[57] The first defendant submitted that the Court should make a finding of contributory negligence and reduce the damages recoverable from it by 25%. The plaintiff "consciously" endangered himself from an obvious risk - the bus moving while he was working under it - when he had not ensured the handbrake was on. Also, he allowed the second defendant to breach the exclusion zone, thereby affording the second defendant an opportunity to interfere with the handbrake, and he got off the bus before the second defendant did and so failed to see to it that the handbrake was as he had initially seen it when he got on the bus.
[58] These contentions sought to engage s 305H(1)(a), (b) and (f) of the Workers' Compensation and Rehabilitation Act 2003 (Qld), though it was pointed out that s 305H(2) provided that s 305H(1) did not limit the discretion of the Court to make a finding of contributory negligence in other circumstances.
[59] The first defendant referred to Bankstown Foundry Pty Ltd v Braistina in which Mason, Wilson and Dawson JJ said:[26]
"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage:"
[60] The plaintiff submitted that there was no contributory negligence, he complied with the work system of his employer. The question of contributory negligence was to be considered in the context of the first defendant's admission of liability, and any failure on the plaintiff's part did not rise beyond mere inattention or inadvertence.[27]
[61] The evidence next referred to is relevant to the issue of contributory negligence.
[62] The plaintiff had never been provided with written instructions concerning the towing of vehicles and had no knowledge of any written policy. He had received "on the job" training provided by other tow truck drivers. The work procedure was either to ensure the handbrake was applied or to chock the wheels. The steps he took to ensure the handbrake was applied were to listen for and to hear the metal on metal sound when he raised the bus slightly before he went into it and to observing the handbrake in the upright position when he was on the bus with the second defendant. Although he conceded his employer required tow truck operators to implement an exclusion zone to ensure the security of the worksite, his understanding was this requirement only applied to major incidents. Incidents involving traffic accidents or dangerous goods were regarded as major incidents. He had never really had any training about exclusion zones for simple towing jobs. This particular breakdown was a routine "pick up and go". He conceded he had no knowledge of the second defendant's reliability with regard to following instructions and he conceded the second defendant's wife's conversation with him distracted him from observing what the second defendant did when he was at the front of the bus.
[63] I accept the plaintiff's evidence concerning his knowledge of his employer's policy, his lack of knowledge about any written policy and his understanding of the limited circumstances in which an exclusion zone was to be implemented. His lack of awareness of any broader application of an exclusion zone was not contradicted by any other evidence in the case. His characterisation of the job which confronted him on 11 August 2019 was not contradicted by any other evidence.
[64] The second and third defendants also submitted that the Court should make a finding of contributory negligence and reduce the damages recoverable from them by 50%. Counsel for the second and third defendants referred to Pollard v Baulderstone Hornibrook Engineering Pty Ltd.[28] Although no particular passage from that case was identified by counsel, the following passages from the judgment of McColl JA are relevant:
"13 At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34 ; (2003) 214 CLR 552 (at [16]) per McHugh J.
[65] The second and third defendants submitted that the plaintiff failed to take any adequate care for his own safety in a situation where he was in control of the towing process, he failed to ensure the handbrake was applied and he failed to chock the rear wheels. He conceded under cross-examination that it would have been sensible to have checked the handbrake personally and he agreed his failure could be described as dangerous or reckless. He knew other drivers had asked the employer for chocking devices. He knew the handbrake could fail and knew that it was not fully up, that it appeared to be up enough. He could not say if he had heard the metal on metal sound when he raised the vehicle the second time.
[66] The plaintiff's evidence was that if the handbrake had been correctly adjusted it would not be pulled up to its fullest extent. It was not a matter in dispute that the handbrake was in proper working order. The plaintiff's evidence was that the presence or absence of the metal sound did not register with him because by the time he raised the bus again he had already satisfied himself that the handbrake was on.
[67] The defendants have failed to persuade me that, considered objectively,[29] the plaintiff did not take reasonable care[30] for his own safety when he went under the bus to attach the towing mechanism. The plaintiff followed one of the two work methods he had been taught to adopt when preparing to tow a vehicle. He had listened for and heard the sound suggestive of an applied handbrake. He had observed the handbrake to be applied. Also, he had instructed the second defendant, the only person in a position to interfere with the operation of the handbrake, that it was not to be released until the end of the process of readying the bus to be towed. The second defendant was only in a position of proximity to the handbrake because it was necessary for the plaintiff to become acquainted with the various controls on the bus in order for it to be towed. In these circumstances at its highest the plaintiff was merely inadvertent in not looking at the handbrake just as he alighted from the bus to ensure it was still in the position in which he had first seen it. Regret for not personally checking the handbrake does not alter this conclusion.
[68] The first defendant submitted the appropriate apportionment between the defendants would be 50/50 because the first defendant was as culpable as the second defendant. Although the incident would not have occurred if the back wheels had been chocked, "equally" the incident would not have occurred if the second defendant had not released the handbrake. The plaintiff made the same submission.
[69] The second and third defendants submitted that the culpabilities of the first and second defendants were not equal. In the event the Court found the second defendant contributed to the plaintiff's injuries by releasing the handbrake, his culpability was much less than the first defendant's, because its defective system of work was the principal cause of the injury. The first defendant through its employee, the plaintiff, controlled the towing operation, the second defendant had no experience with towing and was at the plaintiff's direction. Also, apportionment will only relate to the amount for which both defendants are liable.[31]
"Because each defendants' liability is for the tort of negligence, and the plaintiff's damage was personal injury, the general statutory regime for contribution between tortfeasors applies. Each defendant may recover contribution from the other who is liable in respect of the same damage. Each of the defendants has claimed contribution against the other. The amount of the contribution is to be that found by the court to be just and equitable having regard to the contributing person's responsibility for the damage.
Because the amount of the plaintiff's damages against the first defendant is regulated by the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCRA'), whereas the amount of the plaintiff's damages against the second defendant is assessed under the common law, those amounts are not the same. To the extent that the first defendant is not liable to the plaintiff for amounts that the second defendant is so liable, the second defendant is not entitled to contribution from the first defendant, because the first defendant to that extent is not liable for the same damage." (Footnotes omitted).
"As to apportionment of the amount for which both defendants are liable to the plaintiff, relatively recent and relevant intermediate appellate court authority confirms the long-standing approach that the question is one of proportion, involving a comparison of culpability and the relative importance of the acts of the parties in causing the damage." (Footnotes omitted).
[72] Consideration of the culpability of each defendant leads to the conclusion that they are as culpable as each other. The first defendant had a defective system of work. The second defendant, a person who had no experience of towing, failed to abide by a clear instruction given to him by the plaintiff. Consideration of the significance of each defendant's conduct, on the one hand, failure to provide a safe work method, on the other hand, doing an act after being told it was not to be done at that stage, leads to the conclusion, one without the other would not have caused the plaintiff's injuries. It is just and equitable to apportion equally between the first defendant and the second and third defendants.
Appropriate quantum of damages as against the first defendant
[73] The plaintiff and the first defendant have agreed about amounts for past economic loss ($436,120.18), past superannuation ($58,333.06), past special damages ($237,544.45), and Fox v Wood damages ($38,239.00). The matters remaining in issue are general damages, future economic loss and future care expenses (future special damages).
[74] The plaintiff seeks general damages of $101,500.00. The defendant submits that general damages should be assessed at $39,050.00.
[75] The level of general damages is to be assessed by reference to the Workers' Compensation and Rehabilitation Regulation 2025.
[76] It was not in dispute that the plaintiff suffered multiple injuries as a result of the defendant's breach of duty. In this circumstance the plaintiff and the first defendant agree that it is necessary for the Court to determine the dominant injury, and they agree that it was an injury to the chest.
[77] Schedule 9, part 5, division 1 of the Workers' Compensation and Rehabilitation Regulation deals with chest injuries. The plaintiff contended his chest injuries fell within Item 37 Serious Chest Injury ISV (Injury Scale Value) range 21 to 45. He submitted he sustained a serious traumatic injury to the chest which caused serious disability and ongoing medical problems. The trauma to his chest caused permanent damage which, if not controlled by the spinal cord stimulator in his back, would require him to take medication every day to control his pain. The spinal cord stimulator compromised his abilities to do other things. The plaintiff contended for an ISV in the midpoint in the range 21-45, namely, an ISV of 33. Then, in view of the fact the plaintiff had multiple injuries an uplift of 25% was required which would result in an ISV of 41.
[78] The defendant submitted the plaintiff's injury did not fall within Item 37 because his injury is to be regarded as causative of only a moderate disability and ongoing medical problems. The rib fractures caused intercostal nerve damage and that, even coupled with soft tissue damage to his thoracolumbar spine and a post-traumatic stress disorder, resulted in only a 5-8% whole person impairment. The example provided in Item 37 for an ISV at or near the top of the range concerned a degree of personal impairment (this expression being equivalent to "whole person impairment") for the injury of, or of nearly, 40% and the plaintiff's injury fell short of this. As to this submission it should be noted that the requirement in Item 37 for a degree of personal impairment of, or of nearly, 40% concerns an ISV "at or near the top of the range" and the plaintiff did not contend for an ISV of, or of nearly, 45, rather he contended for an ISV of 33. He correctly described an ISV of 33 as at the midpoint of the range. It was only due to the consideration that he had multiple injuries, that he contended for an ISV of 41.
[79] On the premise that the plaintiff's injuries were only moderate, the defendant submitted they fell within Item 38 Moderate Chest Injury. Item 38 provides for an ISV in the range of 11 to 20 and an ISV of 20 was appropriate in view of the number of rib fractures and the three operations the plaintiff had relating to the spinal cord stimulator. The defendant submitted an uplift for multiple injuries was not warranted given that the plaintiff's pain was well controlled and he now only required minimal medication. Nevertheless, if an uplift was necessary it should be no more than 25% resulting in an ISV of 25.
[80] Having regard to the evidence set out below I am satisfied the plaintiff's chest injury falls within Item 37 Serious Chest Injury and having regard to the plaintiff's post-traumatic stress disorder there should be an uplift in the ISV as submitted by the plaintiff.
[81] Although the stimulator worked well in controlling his pain the plaintiff said he still needed to take pain medication when the battery required re-charging. This had to occur at approximately three weekly intervals. It took about three and a half hours to re-charge the battery. He would also experience pain on the day which followed re-charging. Notwithstanding the assistance of the stimulator he could not sit in the one place for long periods. He said he had become "overly cautious" as he fears that simple movements or activities will damage the stimulator and he would then suffer pain. The pain he had experienced in 2022 was due to the stimulator being damaged or rendered ineffective. I accept the plaintiff's evidence about these matters.
[82] Dr Walden, a pain medicine physician and anaesthetist, gave evidence that the plaintiff was assessed as having sustained multiple rib fractures and bruising to the left kidney. Surgery was not required and after six days he was discharged and prescribed a slow release analgesic medication for pain relief. Two days later he returned to hospital and stayed for 10 days. Fluid had to be drained from a lung. He was discharged and prescribed a different analgesic to take twice per day. Dr Walden said the plaintiff had suffered injuries to his intercostal nerves. These nerves run from behind every rib and are often damaged when a rib is fractured. The nerves provide sensation to most of the anterior chest and abdominal wall. The nerves enter the spinal cord through the thoracic spine. Due to the ongoing pain that the plaintiff experienced, a surgeon referred him to a pain medicine physician in December 2019, and that physician administered bilateral spinal injections which completely improved the plaintiff's pain but only for a few hours. In October 2020 a temporary trial of a spinal cord stimulator improved his pain by 75%. As a result of this, in November 2020 the plaintiff had a permanent spinal cord stimulator inserted in his spine. It was effective to relieve 75% of his pain and he required no analgesic medication for pain relief. However, by the middle of 2021 the pain relief provided by the spinal cord stimulator had started to diminish and eventually the spinal cord stimulator failed completely. As a result of the reduced effectiveness of the device, the plaintiff had to again rely on analgesic medication to reduce his pain. In August 2022, a step was taken to restore functioning to the spinal cord stimulator but it failed again. It was replaced in December 2022 when a stimulator battery was implanted. This reduced the plaintiff's pain by 75-80%. The plaintiff could not rely on the battery all the time though, because, for a day every three weeks it had to be recharged.
[83] Dr Walden said spinal cord stimulation is not a commonly used technique to manage pain. It is reserved to those cases where nerve-related pain is not amenable to treatment with medication. It is a very invasive method of treatment. It involves the placing of a flexible electrode just outside the spinal cord and a very low electrical current is passed through the electrode and that current blocks painful nerve impulses entering the spinal cord and being transmitted to the brain where they are perceived as pain. Replacement or revision of the stimulator will be required once every seven years. Dr Walden considered the plaintiff had a whole person impairment of 15% which, when combined with the post-traumatic stress disorder, produced a whole person impairment of 21%. The plaintiff had been diagnosed with a post-traumatic stress disorder by a psychiatrist, Dr Fraser, whom he had been seeing since May 2020.
[84] Dr Foxcroft, a psychiatrist, opined that the plaintiff developed a clinically significant post-traumatic stress disorder following the accident. Dr Foxcroft said the accident was the sole cause of the plaintiff's psychiatric impairment. His prognosis was poor and he had a well established and chronic post-traumatic stress disorder and the symptoms would persist. On the PIRS scale he assessed him as having an impairment of 8%.
[85] Dr Chalk, a psychiatrist called by the defendant, agreed the plaintiff developed post-traumatic stress disorder after the accident. However, he considered that the condition was of moderate severity. He considered the plaintiff had a 5% whole person impairment as a consequence of the post-traumatic stress disorder. I give greater weight to and prefer the opinion of Dr Foxcroft concerning the extent of the PIRS assessment because Dr Chalk saw the plaintiff on only one occasion on 24 November 2021 whereas Dr Foxcroft saw the plaintiff on 23 November 2021 and again on 29 July 2024.
[86] Conflicting opinions concerning the extent of the level of whole person impairment were provided Dr Campbell, called by the plaintiff, and Dr Coyne, called by the defendant. Both doctors were neurosurgeons.
[87] Dr Campbell considered the plaintiff had suffered a crush injury to his thoracolumbar spine which caused a soft tissue injury. By 24 November 2024, when he saw the plaintiff for the second time, he remained of the same opinion he had formed after his first examination in November 2021, he had a 14% whole person impairment as a result of this injury. There was unlikely to be any improvement.
[88] Dr Coyne considered that it was possible the plaintiff had sustained a soft tissue injury to his thoracic and lumbar spine. However, he assessed him as having 0% impairment of the whole person for any thoracic or lumbar spine soft tissue injuries. Although he did not question the plaintiff's account of chronic pain, he considered that whole person impairment was to be assessed on the basis of objective evidence, rather than a patient's report of pain. However, he said he would defer to "either a pain specialist or - people that actually treat fractured ribs and abdominal bleeding."
[89] Dr Coyne's concession that he would defer to the opinion of a pain specialist assists to accept the opinion of Dr Walden, a pain specialist. Dr Walden's evidence satisfies me that the plaintiff has suffered a serious injury to his chest which will require the use of a stimulator to control his pain for the rest of his life. The plaintiff has therefore persuaded me that he has suffered a serious traumatic injury to the chest which has caused him serious disability and on-going medical problems. I assess general damages at $101,500.00.
[90] The parties agree that interest on past economic loss and past superannuation is to be calculated on the sum of $405,493.14 at an interest rate of 2.33% for 6.56 years. The result is $61,978.82.
[91] The parties agree that interest on past special damages should be assessed at $8,254.15 ($54,118.52 x 2.325 x 6.56 years).
[92] As to future economic loss, the plaintiff seeks $468,663.39. The defendant submits that future economic loss should be assessed at $320,000.00. The plaintiff submitted he had intended to work to at least the age of 67 but might perhaps even have worked through to the age of 70. The plaintiff said the evidence of his wife established that he enjoyed his work. In these circumstances the submission was that no discount may be appropriate. Anticipating a point that the defendant relied on regarding a shoulder injury, the plaintiff submitted Dr Walden's reports recorded that this injury was towards the centre of his back below his neck, and it would not be expected to have inhibited his ability to continue his work as a tow truck driver.
[93] The defendant does not dispute that the plaintiff has no residual earning capacity. The defendant identified the issue for the Court as being how long the plaintiff would have continued to work in the absence of the injury. The defendant said that the plaintiff's wife was 13 years older than him, she is currently 73. The defendant said they were clearly a couple who enjoyed a close relationship. The plaintiff's work as a tow truck driver required him to be away from home for long periods. The plaintiff suffered from a right shoulder condition which had nothing to do with the injury this case is concerned with, but it was a condition that was aggravated by the use of his right arm. It was pointed out the plaintiff had informed Dr Walden he intended to retire at the age of 65. Having regard to these matters the defendant submitted the Court would make a substantial discount for the prospect the plaintiff would have worked to the age of 67. The submission was that all of these matters militated in favour of a conclusion the plaintiff would most likely have only worked to the age of 65.
[94] The Court is required to form an estimate of the likelihood of the possibility of the plaintiff working until the age of 67.[35]
[95] In his quantum statement, the plaintiff stated that at the time of the accident he had envisaged working as a heavy tow truck driver until retirement which he planned would be at the age of 67. In evidence in chief, the plaintiff said he would probably have retired at 67. He was not cross examined about what he said to Dr Walden concerning a retirement age. As to the shoulder injury, his evidence was that he suffered a rotator cuff injury in 2017 for which he received a steroid injection then and most likely another such injection in 2020. He denied he had complained of pain in his right shoulder subsequent to the accident involving the bus. He said he had only complained of pain between his shoulder blades. He regarded pain there as attributable to the accident involving the bus rather than to the 2017 injury. However, the evidence of Ms Coles, occupational therapist, was that at her consultations with the plaintiff in 2021, 2024 and 2025 he had complained to her of pain in his right shoulder blade.
[96] Leaving this apparent inconsistency to one side, the significant consideration concerning the likelihood of the plaintiff having worked until 67, is the nature of his relationship with his wife and her age. The evidence satisfies me that they are a couple who are devoted to each other, for example, Mrs Anderson said that they did everything together. Her being 13 years older than him leads me to conclude that it is unlikely the plaintiff would have worked until he was 67 in a job where he was "never home" as he put it. By the time he was 67 his wife would be 80 years of age, and my understanding of his evidence was his job required him to be away from home for long periods of time and this is a consideration that would probably have weighed more heavily with him as the years went on. Therefore, I estimate it likely that he would have retired at 65.
[97] As already stated, in the event the Court reached this conclusion, the defendant proposed $320,000.00 as the award for future economic loss. This was the approximate midpoint between the figures arrived at by calculating to the age of 67 (5% multiplier 309) and applying a 30% discount and calculating to the age of 65 (5% multiplier 231) and applying a 10% discount. I did not understand the plaintiff to dispute the amount of $320,000.00 if the Court accepted the defendant's submission concerning the plaintiff not working to the age of 67 years. I assess the damages for future economic loss at $320,000.00.
[98] As to future expenses, the plaintiff seeks an award of $95,157.72. The defendant submits that $35,000.00 should be awarded. The defendant took no issue with the plaintiff's calculation of the amount he sought but submitted that in view of his dislike for surgeries, it was speculative about whether he would ultimately have all of the revision surgeries that were contemplated. The last one, for example, was forecast to take place when he was aged 85 and it was unlikely given it was at the very edge of his life expectancy that that surgery would occur. It was submitted he had shown a disinclination to engage in psychological and psychiatric treatment and his requirement for medication was now very limited. I do not accept these submissions.
[99] There is no basis to conclude the plaintiff is unlikely to undergo any recommended surgeries to repair or replace the stimulator. He has found the stimulator effective to reduce his pain. It enables him to avoid having to take pain medication on a daily basis. When the simulator became inoperable the plaintiff funded its replacement by spending about $60,000 of his own funds. All this suggests the plaintiff would present for necessary procedures related to the stimulator. The possibility he would not do so was not explored with him. Whether he will be otherwise fit to endure surgery in his 80s is entirely speculative. Although he stopped psychological therapy sometime prior to July 2024, the plaintiff's evidence was that in the six months prior to the trial of this case he had attended eight appointments with a psychologist at Hervey Bay. It cannot be regarded as likely that the plaintiff will maintain his opposition to any psychiatric medication if it is recommended to him in the future. I assess the damages for future expenses at $95,157.72.
Appropriate quantum of damages as against the second and third defendants
[100] The plaintiff and the second and third defendants have agreed about amounts for past economic loss ($436,120.18), past superannuation ($58,333.06), past special damages ($237,544.45), and Fox v Wood damages ($38,239.00). The matters which remain in issue are general damages, future economic loss, future expenses, past care and assistance and future care and assistance.
[101] The parties agreed general damages are to be assessed in accordance with the common law, as the Civil Liability Act did not apply to the plaintiff's claim.
[102] The plaintiff submits that there should be an award of general damages of $110,000.00. The defendants submitted general damages should be assessed at $80,000.00. The plaintiff argued the Court would derive assistance from the level of general damages assessed by virtue of the Workers' Compensation and Rehabilitation Regulation and also by having regard to what was determined in other cases. The plaintiff relied on Cootes v Concrete Panels & Ors.[36] In that case, Crow J observed[37] that under the common law, general damages are awarded to recompense for the pain, suffering and loss of the amenities of life suffered by a plaintiff due to personal injuries. Crow J considered the proper level of general damages to be $110,000.00 for a person who suffered a crush injury with ongoing pain, as well as post-traumatic stress disorder where the PIRS impairment was considered to be in the range of 4-6%.
[103] Written closing submissions for the defendants were confined to reminding the Court of various doctors' assessments of whole person impairment, PIRS impairment, and the submission that general damages of $80,000.00 was appropriate. Counsel did not advance any oral submissions about general damages.
[104] I am mindful of the various whole person impairment assessments and the two PIRS impairment assessments. I also take into account that the plaintiff has suffered a very serious injury which caused him great pain and that the continuing experience of pain would otherwise be constant but for it being prevented by a device which is not effective to immunise him from all pain. The plaintiff has lost amenity of life as he can no longer do the job he enjoyed and wanted to continue doing for some years yet. He can no longer enjoy working in his garden, going fishing or long motor vehicle trips. Guided by these considerations, and the assessment of general damages arrived at in Cootes, I assess general damages at $110,000.00. Interest on general damages is assessed at $7,216.00 ($55,000.00 x 2% x 6.56 years).
[105] Interest on past economic loss and past superannuation is calculated on the sum of $405,493.14 at an interest rate of 3.92% for 6.56 years. The result is $104,273.37.
[106] The parties have agreed that interest on past special damages should be assessed at $14,200.69 ($54,118.52 x 4% x 6.56 years).
[107] For future economic loss, the defendants submitted that based on the plaintiff's retirement being at 67 years of age, there should be a 10% discount for contingencies. However, I have estimated it likely that the plaintiff would have retired at the age of 65. Applying the same formula the first defendant proposed concerning the calculation of the award for future economic loss, I assess damages for future economic loss at $320,000.00.
[108] The plaintiff seeks $95,157.72 for future expenses. The defendants' written submission is that future expenses should be assessed at $66,442.72. The defendants urge an assessment based on a life expectancy of 80, in which case the forecast final revision surgery need not be accommodated, on medical, pharmaceutical and travel expenses being $10 per week, $5 per week and $5 per week respectively and on no allowance for psychological treatment.
[109] I am satisfied damages for future expenses should be based on the average life expectancy of 85 years. No submissions were made in support of a life expectancy of 80 years. Based on a life expectancy of 85 years the final revision surgery could be required. As the plaintiff has resumed psychological treatment and as Dr Foxcroft has recommended it be a further 15 sessions, the sum the plaintiff seeks, $3,900.00, is reasonable. The plaintiff's suggested provision for medical, pharmaceutical and travel expenses of $20 per week, $10 per week and $10 per week respectively is reasonable. I assess damages for future expenses at $95,157.72.
[110] Based on an average life expectancy of 85 years, the plaintiff seeks damages of $2,056,511.78 for future care and assistance. The defendants submit based on a life expectancy of 80 years, as well as the matters next mentioned, damages should be assessed at $179,820.00. They argued the plaintiff's evidence did not support a claim for future care as set out in Ms Coles' reports of 2024 and 2025. Ms Coles' assessment of the plaintiff's functional capacity was restricted because she did not visit his house and assess him in his house and, relied heavily on his subjective reports of pain due to restrictions created by the stimulator which impeded a more objective assessment. Her assessment of the ongoing need for personal care of three hours per day reducing to two hours per day was not supported by any detail apart from a reference to Mrs Anderson's assistance with showering. The defendants submitted the plaintiff agreed this was the only personal care he needed. Therefore, Ms Coles' estimate was simply too high. As to the other care provided by Mrs Anderson, such as meals and cleaning, the defendants submitted that this work was already done for the plaintiff prior to the accident, so his need for ongoing care and assistance with these tasks does not arise from his injuries and should not be included in any allowance for future care. No statutory provision or authority was cited in support of this submission. They submitted the appropriate amount of care was six hours per week (which included domestic care but only for that which was not being provided before the accident and which also included one hour per week for garden work). They also submitted the rate of care should be assessed at $45 per hour.
[111] The plaintiff submitted the issue is what are the reasonable needs of the plaintiff since the accident. The award for future care and assistance is not to be discounted because his wife did all the chores around the house prior to the accident due to his work commitments. Also, commercial rates of care are the appropriate yardstick and Ms Coles used the NDIS rates which most providers use.
[112] The plaintiff said he required assistance to wash his back and feet when he showered and help to put on pants, socks and enclosed shoes. He acknowledged shower assistance could sometimes only take a few minutes each day. He is anxious when his wife goes out leaving him alone at home. Particularly at such times he would rely on the emotional support provided by his dog. Mrs Anderson's evidence was she assisted her husband in the shower by washing his back, legs or feet. She also cut his toenails from time to time and put socks on his feet. She agreed assisting him in the shower might take about five minutes per day. She said that at the end of 2025 the plaintiff was depressed and anxious most of the time, he had gone from being active socially to now infrequently socialising with others.
[113] The plaintiff had provided Ms Coles with photographs of the exterior and interior of his house and yard. Ms Coles said she relied on the photographs to arrive at her assessments. She did not agree she was very reliant on subjective reports of pain. While those reports were relevant to her assessment, she was also able to assess his physical capacities within the limitations the stimulator created. She said the allowance of two hours per day for personal care was not confined to the time occupied in assisting with showering. Her report included the following: "the not insignificant emotional support and the therapeutic-type companionship" provided by Mrs Anderson.
[114] The evidence proves the plaintiff does have an ongoing need for personal care and assistance arising from the accident. However, the evidence does not establish that he requires two and half hours of care each day in view of the range of tasks he needs help with. In his report dated 29 November 2024 Dr Foxcroft said the plaintiff had no current suicidal ideation. One hour of care each day would be reasonable. The range of domestic services the plaintiff requires, asserted to take one and a half hours per day, is not supported by any evidence concerning how much time will be required to perform these services. An hour each day would be reasonable. The evidence does not establish that two hours per week will be required to care for the yard, garden and property. Although the property is one acre in size no evidence was adduced about how long it could take to provide services to a property of this size. There is no evidence about seasonal variation, such as what is required in summer compared with winter or, perhaps more accurately in view of where the property is, what is required in the wet season compared with the dry season. An hour per week would be reasonable. This results in 15 hours of care per week.
[115] I accept the plaintiff's submission that the award for future care and assistance should not be discounted in the situation where Mrs Anderson was continuing to perform tasks she had performed prior to the plaintiff's accident. The evidence establishes he cannot make his own meals, clean the house and make his bed. He now needs these tasks to be done for him and merely because it previously suited their domestic arrangements that Mrs Anderson perform them is not to the point. The plaintiff's inability to do these tasks now is not due to him working in paid employment as it was prior to the accident but rather to the injuries he sustained in the accident. In Shaw v Menzies the Court of Appeal said:[38]
"The meaning to be attributed to gratuitous services in the legislation is its meaning at common law. In CSR Ltd v Eddy Gleeson CJ, Gummow and Heydon JJ discussing generally the development of the law in Australia on the recovery as damages of the provision of gratuitous care to an injured plaintiff, confirmed that:
'... in a claim for personal injury the plaintiff was entitled to recover an amount equivalent to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff.'
'... the true basis of the claim was the need of the plaintiff for the services; that the plaintiff did not have to show that the need was or might be productive of financial loss; and that the plaintiff's damages were not to be determined by reference to the actual cost to the plaintiff of having the services provided or by reference to the income foregone by the provider, but by reference to the cost of providing those services generally in the market.'
'However, the Griffiths v Kerkemeyer line of cases does not turn on a 'post-accident' or an 'accident-created need' in the abstract. In Van Gervan v Fenton Mason CJ, Toohey and McHugh JJ said: 'the true basis of a Griffiths v Kerkemeyer claim is the need of the plaintiff for those services provided for him or her'. That passage was concurred with by Brennan J and quoted with approval by Gaudron J. When later in their judgment Mason CJ, Toohey and McHugh JJ referred to 'need', it was to 'need' in that sense. Thus they immediately thereafter asserted the proposition that 'it is the need for the services which gives the plaintiff the right to an award for damages'. They reiterated it later when they spoke of 'the services required by the injured person' and 'the services which the plaintiff reasonably needs'. Although Dawson J did not agree with the majority's approach in Van Gervan v Fenton, he accepted in Kars v Kars that the basis of Griffiths v Kerkemeyer was that a 'plaintiff receives the value of services voluntarily provided by way of damages as compensation for the loss suffered by reason of the injuries which manifest itself in the form of a need for those services', and what was in issue was 'the voluntary provision of services to a plaintiff'. The majority in Kars v Kars (Toohey, McHugh, Gummow and Kirby JJ) described the principle as permitting recovery of damages 'in respect of the cost to a family member of fulfilling the natural obligations to attend to the injuries and disabilities caused to the plaintiff by the tort.'..." (Footnotes omitted).
[116] Concerning the rate of care, I accept the plaintiff's submission that commercial rates of care are the appropriate rate. In Van Gervan v Fenton it was said "Because the market cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost as a general rule, is the amount which the defendant must pay in damages".[39] Ms Coles acknowledged her report utilised NDIS commercial rates of care. Those rates show that since mid-March 2025 the standard rate for assistance for self-care is $70.23 per hour. The domestic services rate is $50.06 per hour. The yard maintenance rate is $56.98 per hour.
[117] Ms Coles conceded some carers provided these services at lower hourly rates and some provided them at higher hourly rates than the NDIS rates. In her recent experience in a regional area 11 out of 12 providers she contacted used the NDIS rates.
[118] On the evidence I am unable to be satisfied that the NDIS rates reflect the market cost of these services because the evidence is that providers charge less than, the same as, and more than the NDIS rates. The defendant's suggested rate of $45 per hour was not based on any evidence. In these circumstances I proceed on the basis of a rate of $55 per hour. I am satisfied damages for future care and assistance should be based on the average life expectancy of 85 years. No submissions were advanced to support the assertion it should be based on a life expectancy of 80 years.
[119] Calculating future care and assistance for 15 hours per week at the rate of $55 per hour to 85 years, 3% discount factor, 922, and a further discount of 10% for contingencies, results in the assessment for future care of $684,585.00.
[120] The plaintiff claims $569,074.69 for past care. The defendants submit $158,715.00 should be allowed for past care, this figure arrived at by reducing the number of hours allowed for past care and by only allowing for a rate of $45 per hour.
[121] The plaintiff's claim is not based on records kept evidencing the number of hours of care that had actually been provided. The plaintiff gave very general evidence about the care his wife had provided in terms of the tasks she performed and about how the range of tasks reduced over time. Mrs Anderson said that after the plaintiff's discharges from hospital in 2019 she had to shower him and dress him. This continued during 2020. Following the placement of the stimulator she only had to wash his legs and feet because he could then shower himself. Ever since the revision surgery in 2022 she has continued to take him to appointments. Ever since the accident in 2019 she has made all his meals and done all his washing and drying. She has made his bed, which is separate from her bed for medical reasons. She has done the mowing on their one acre block on a ride-on mower. She has attended to the garden maintenance. She does all the cleaning of the house once a month. No evidence was elicited from her about how long these various tasks took.
[122] In her report of April 2022 Ms Coles stated that she had provided, "from an occupational therapy perspective, estimates of personal, domestic and other assistance reasonably expected to have been required (which may vary from that actually provided) ...". By way of example, in her report of August 2024 she revised upwards the number of hours she had estimated for yard and garden maintenance "since provision of more detailed photographs". The revised estimate was "8 to 10 hours per month on average". A Schedule of Care and Assistance attached to the plaintiff's quantum statement included a component for "Yard, Garden and Property Services 8-10 hours per month (per Helen Coles' Report)". The schedule claimed 9 hours per month for the period 11 August 2019 to 1 December 2025. Schedules had also been prepared concerning personal services and domestic services. They too were based on the estimates provided in Ms Coles' report.
[123] The result is that the plaintiff's claim for past care is based only on Ms Coles' estimates which may or may not reflect the amount of care in fact provided. Even so, I accept the evidence of the plaintiff and Mrs Anderson that the plaintiff needed his wife to perform the tasks he and she said were performed because I accept he could not do them due to the injuries he sustained in the accident. Accordingly, there must be an allowance for past care. The defendants do not dispute this. Absent evidence, I do not accept that nine hours per month were required for yard, garden and property services. I consider four hours per month (one hour per week) from 11 August 2019 would have been sufficient. If Dr Campbell's expertise extended to gardening estimates then his opinion did not support this aspect of the plaintiff's case. Dr Campbell said in his report of November 2021, that a gardener for four to five hours per month would be reasonable. I do not accept that in the period since the insertion of the present stimulator on 2 December 2022 that two to three hours per day of personal services has been required. One hour would be reasonable from December 2022. I am not satisfied that 1.75 hours per day of domestic services have been required since the insertion of the present stimulator. One hour would be reasonable from December 2022. It can be accepted that the hours required to care for the plaintiff were more substantial in the period immediately after the accident and also in the period prior to the insertion of the stimulator in December 2022 when compared with the position since December 2022. The plaintiff agreed that the stimulator worked effectively to control his pain. I find that the stimulator reduced the level of the plaintiff's pain resulting in some improvement in his ability to care for himself.
[124] As to the rates, Ms Coles relied on the various NDIS rates that applied at different times over these years. For personal services the rates for week days ranged from $48.14 in August 2019 to $70.23 by 1 December 2025. The rates for domestic services ranged from $44.61 in August 2019 to $59.06 by 1 December 2025. The rates for yard, garden and property services ranged from $46.20 in August 2019 to $56.98 by 1 December 2025. I can not be satisfied that the NDIS rates at any particular time in the past represented the rates that the plaintiff would have been required to pay for these services.
[125] Calculating past care and assistance at the rate of $45 per hour for the number of hours claimed by the plaintiff up to the time of the revision surgery in December 2022 and for the number of hours I consider reasonable since then results in the assessment of damages for past care at $295,453.13.
[126] I allow interest at 4% from the date of injury to the date of judgment (a period of 6.56 years), a further $77,526.90.
[127] The position regarding damages is therefore as follows:
Interest on Past Economic Loss and Past Loss of Superannuation
[128] Bearing in mind the conclusion concerning apportionment and the requirement in s 52(4) of the Motor Accident Insurance Act that judgment must be given against the insurer and not the insured, the orders of the Court are:
[5] Motor Accident Insurance Act s (1)(a)(iii).
[7] The List of Matters Not in Dispute included, "(j) the handbrake of the [bus] was in proper working order;".
[8] The List of Matters Not in Dispute included, "(i) the second defendant engaged the handbrake of the [bus] prior to the plaintiff arriving;".
[9] The List of Matters Not in Dispute included, "(m) the wooden blocks were 11-inch cubes in measurement; (n) the tyres were 200 millimeters wide;"
[10] The List of Matters Not in Dispute included, "(p) whilst the plaintiff was lying under the Mitsubishi it rolled forwards off the blocks ...".
[12] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358.
[13] Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited [1999] QCA 386; [2000] 2 Qd R 682 per Davies JA at [22].
[14] Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89 at [52] and [63].
[15] Suncorp Metway Insurance Ltd v Sichter [2010] QSC 164; [2011] 2 Qd R 89 at [38].
[20] Townsville Trade Waste Pty Ltd v Commercial Union Assurance Company of Australia Limited [1999] QCA 386; [2000] 2 Qd R 682 at [22].
[21] Technical Products Pty Ltd v State Government Insurance Office [1989] HCA 24; (1989) 167 CLR 45 at 47-48.
[23] Suncorp Metway Insurance Ltd v Wickham Freight Lines Pty Ltd & Ors [2012] QSC 237; (2012) 61 MVR 534 at [32].
[25] Transcript, p 4-26 line 38-4-27 line 13.
[26] (1986) 160 CLR 301 at 310.
[27] McLean v Tedman (1984) 155 CLR 306 at 315.
[29] Joslyn v Berryman (2003) 214 CLR 552 at [32].
[30] Green v Hanson Construction Materials Pty Ltd [2007] QCA 260; (2007) Aust Tort Rep 81-907 at [30] and The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6 at [35].
[31] Law Reform Act 1995 (Qld) s 6(c).
[35] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 639-640 and 643; Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 350; Seltam Pty Limited v Gharleb [2005] NSWCA 208 at [103].
[38] [2011] QCA 197 at [74]- [75].
[39] (1992) 175 CLR 327 at 333-334; Shaw v Menzies [2011] QCA 197 at [77]; Carey-Schofield v Hays & Civeo [2024] QSC 60 at [162].
Anderson
Claytons Towing Service Pty Ltd & Ors [2026] QSC 26
(1986) 160 CLR 301
(2002) 35 MVR 321
(2004) 218 CLR 89
(2000) 31 MVR 27
(2003) 214 CLR 552
(1952) 85 CLR 352
(1990) 169 CLR 638
(1984) 155 CLR 306
(1994) 179 CLR 332
(2012) 61 MVR 534
(1989) 167 CLR 45
(1992) 175 CLR 327