TORTS – NEGLIGENCE – DUTY OF CARE – road accident case
– where plaintiff/child was struck by a vehicle being
driven by the first
defendant – whether special care is needed where children are on the
Source
Original judgment source is linked above.
Catchwords
TORTS – NEGLIGENCE – DUTY OF CARE – road accident case– where plaintiff/child was struck by a vehicle beingdriven by the firstdefendant – whether special care is needed where children are on theroadside – whether conduct ofthe first defendant reached the standard ofcare required by a driver approaching children on the side of the road.TORTS – NEGLIGENCE – CONTRBUTORY NEGLIGENCE –APPORTIONMENT OF RESPONSIBILITY – whether plaintiff failed totake propercare for his own safety – whether plaintiff liable for contributorynegligence.TORTS – NEGLIGENCE – VICARIOUS LIABILITY – NON DELEGABLEDUTY – where sixth defendant made an admission thathe was the owner andoccupier of the Tae Kwon Do academy where plaintiff attended – where notvicariously liable – whetherthere was a non-delegable breach of duty bythe sixth defendant – whether the non-delegable duty vested in the sixthdefendant
amounted to an undertaking to ensure that no harm would come to the
plaintiff.
Derrick v Cheung (2001) HCA 48, distinguished.
D’Ambrosia v De Souza Lima 60 ACTR 18, applied. Good v
Thompson & Suncorp General Insurance Limited (2001) QSC 287, cited.
Griffiths v Doolan (1959) Qd.R. 304, cited.
Gunning v Fellows (1997) 25 MVR 97, cited.
The Commonwealth of Australia v Introvigne [1982] HCA 40
(1982) 150 CLR 258,
considered. Kondis
v State Transport Authority [1984] HCA 61
(1984) 154 CLR 672, applied.
Nye v Peters (1967) 68 SR (NSW) 298), cited.
Settree v Roberts (1982) 1 NSWLR 649, applied.
Judgment (157 paragraphs)
[1]
Cleary and Lee Solicitors for the first and second defendant.
[2]
[1] In these proceedings the plaintiff claims damages for personal injuries sustained by him sometime around 7.30pm on 30th October 1989 on Heatleys Parade, Townsville. At that time Queensland was observing daylight saving.
[3]
[2] The plaintiff was born on 2/9/81 and was thus eight when he was injured.
[4]
[3] The difficulties associated with a trial taking place so long after the event are obvious.
[5]
[4] The action has not proceeded against the fourth and fifth defendants. The third defendant is deceased and the plaintiff does not pursue any cause of action against his estate. The action thus proceeded against the first and second defendants and against the sixth defendant.
[6]
[5] The plaintiff was one of a group of about ten to fifteen members of a Rhee Tae Kwon Do class who had gathered for the purposes of those activities at St Mark's Hall, Belgian Gardens and who were running to an area at Rowes Bay in the course of the evening's activities. It was necessary to run alongside Bundock Street and then Heatleys Parade before crossing the latter to reach the intended destination.
[7]
[6] The plaintiff suffered severe injuries when he was struck by a vehicle being driven by the first defendant and of which the second defendant was the insurer under the relevant legislation then in force.
[8]
[7] The third defendant, referred to as an instructor, was leading the group at the time.
[9]
[8] I will return in due course to the relationship between the third defendant and the sixth defendant when dealing with the cause of action alleged against the sixth defendant.
[10]
[9] The plaintiff has no recollection of the incident. His last recall is leaving home to go to the hall.
[11]
[10] He and the other members of the class were wearing Tae Kwon Do uniforms, which are white in colour.
[12]
[11] A number of persons who formed part of the group that evening were called to give evidence. The first defendant also gave evidence and his brother who was a passenger in his vehicle was called by the plaintiff as a witness.
[13]
[12] There was some difference between the witnesses as to the state of natural lighting at the time. Exhibit 7 is a document which sets out relevant astronomical data. The parties have reached agreement about certain matters on this subject which is recorded in Exhibit 7(d). Whilst I am satisfied that some vehicles may have had their lights on at the time, the evidence as a whole satisfies me that there was adequate light for motorists to travel safely and for a vehicle to be seen readily without lights.
[14]
[13] There is a plan of the area prepared by the police (see Exhibit 3) and there are photographs taken on the evening concerned (see Exhibit 4).
[15]
[14] The group after turning into Heatleys Parade from Bundock Street ran beside Heatleys Parade (to the west of the road) to a point where it was intended they would cross and go to a park to continue their exercises.
[16]
[15] As the group ran along Heatleys Parade it strung out somewhat with the members running to some extent in file and to some extent in small groups. The third defendant lead the group and came to a point near what is referred to as the Bush Childrens Home at which point he crossed. The evidence would suggest that he crossed it with one or two other members of the group and then stood on the eastern side of the roadway. Some of the evidence suggests he stood facing back to the west while other evidence suggests that he stood facing away from the road. I am inclined to accept the evidence that he was facing back towards the group. I think this is more likely.
[17]
[16] The distance spanning the group at about the time the third defendant crossed the road was somewhere between 20 and 50 metres.
[18]
[17] The first of the group behind the third defendant was David Cooper who was called as a witness. He describes himself as being in a small group of about three to four of which the plaintiff was one. It would seem that also in this group was one Michael Service who gave evidence. He would have been 13 at the time. The last person in the group running along beside Heatleys Parade that night was Robin Gandini. Alex Morf was also in the group and it would seem he was somewhere closer to the front of the group than Gandini. Both of these were called as witnesses.
[19]
[18] The evidence satisfies me that the leading group (that is after the third defendant and those with him had crossed the road) stopped beside the road and some who were behind them caught up to them or were in the process of catching up to them. The group which stood beside the road included the plaintiff and David Cooper and another child or other children.
[20]
[19] The area where the group stopped is shown on Exhibit 4(b). I am satisfied that the group which included the plaintiff stopped in the area of bitumen between the continuous white line and the gravel shoulder of the roadway. It is not I think possible from the evidence to place the plaintiff any more precisely than this. He was standing a short distance away from the continuous white line and I am satisfied that he was looking across the road and up and down it as he stood there with the others. The plaintiff was to the immediate left of Service and to the right of Cooper.
[21]
[20] There is some evidence from Gandini that the plaintiff was "very excited". She said "I mean - I mean sorry, - little kids you know --- be very excited at that stage and I just seem to remember David sort of shielding them and just putting --- trying to bring them back a bit but also looking for the traffic."
[22]
[21] She had prepared a statement which was tendered in evidence and which is Exhibit 23 in which she said that Cooper was standing about a foot behind the plaintiff. This is somewhat inconsistent with her evidence that Cooper was standing in a position where he was holding the children back. When asked about this she said "It's a long time ago."
[23]
[22] Whilst other evidence (including that of Cooper and Morf) is contrary to what she said in evidence some support is arguably found in the evidence of the brother of the first defendant who was called in the plaintiff's case and the first defendant himself. The former said he saw the group and that one of them had his back to the road. The defendant said that the group appeared to be in a huddle facing each other and not looking at his approaching vehicle.
[24]
[23] Cooper saw the approach of the vehicle from a distance of about 50 to 70 metres away travelling at about 60 kilometres an hour. He did not notice any alteration by way of increase or decrease in the speed prior to the collision with the plaintiff. According to Cooper the plaintiff who was beside him "just darted off across the road". He says that the plaintiff was facing across the road at that time.
[25]
[24] According to Cooper the plaintiff's move was something like a metre or slightly more before the impact. The plaintiff it is clear from the evidence as a whole came into collision with the passenger side of the vehicle a little more than halfway along its length.
[26]
[25] Service says he saw the vehicle some hundred to two hundred metres away. It appeared to travel at a constant speed although Service was not able to provide an estimate of this.
[27]
[26] He did not see the plaintiff run onto the road but he heard the impact.
[28]
[27] Gandini says that as she ran along towards the stationary group there was traffic going both ways and she recalls a car or some cars with headlights. As I have indicated whilst I do not doubt that one or more vehicles may have had headlights on I do not think that the state of the light was such as to require a reasonably careful motorist to have the headlights of his/her vehicle burning.
[29]
[28] She says that she saw a car out of the corner of her eye and a moment later the accident happened. The vehicle didn't appear in the short period that she saw it to be speeding up or slowing down.
[30]
[29] Morf also gave evidence of seeing the vehicle approaching although he does not appear to have been asked what distance away it was when he first saw it. He said that "he wasn't driving fast or anything like that --- just slow and just going through."
[31]
[30] He too did not see the plaintiff run onto the road.
[32]
[31] Cooper in cross-examination said that there was no indication to him that the plaintiff was going to run onto the road and Morf accepted when it was put to him that there was no urgency on the part of anyone in the group to cross the road and that no-one needed to be restrained from crossing the road.
[33]
[32] David Hill, the first defendant's brother who was called by the plaintiff was a passenger in the vehicle. He recalls that as the vehicle drove in a northerly direction along Heatleys Parade he saw from about a hundred metres away a group of people at the side of the road stationary. They were dressed in what he recognised as Tae Kwon Do training "get up". Most of them appeared to be facing across the road. One of them had his or her back to the road. He saw another person also in uniform walking towards the group. He does not recall seeing anyone on the other side of the road at the time.
[34]
[33] His impression was that the person approaching the group was an adult but that the persons on the roadside appeared to be children. He said that when he spoke of children he was referring to someone between the ages of five and twelve.
[35]
[34] He was unable to say what speed the vehicle was travelling at the time. According to his evidence the first defendant decelerated and moved a little closer towards the centre line. When they reached the group he saw from the corner of his eye someone turn around and he heard and felt a thud roughly a metre behind where he was sitting in the vehicle and he turned around and saw the plaintiff lying on the roadway. His evidence was that the lighting at the time was good.
[36]
[35] The first defendant said that he was travelling at about the speed limit and as he drove along Heatleys Parade he saw some people standing on the side of the road between the shoulder of the road and the solid white line. It looked like they were waiting. He estimates that he saw them at a distance of about a hundred metres and that it appeared to be a mixed group including children. He says that he reduced the speed of his vehicle and moved towards the centre of the road to place some greater distance between he and them. He said that the lighting was good. He continued along the road in this way and assumed that they were waiting to cross the road when it was clear to do so. His vehicle did not have any lights burning.
[37]
[36] He heard and felt as he passed the group some contact with the car and looked in his rear vision mirror and saw a child lying on the road behind him.
[38]
[37] He said that the group appeared to be in a huddle and that they did not appear to be looking at his vehicle.
[39]
[38] He did not sound the horn and said that he did not see an emergency "so that's probably why I did not sound my horn at the time---".
[40]
[39] He was not sure whether he decelerated by using the brakes or not.
[41]
[40] The evidence which I have referred to in paragraphs 20 and 22 of these reasons, which I accept, suggest that there was some degree of what for want of a better term I might describe as milling around on the part of the group beside the road. Whilst I am not prepared to accept that Cooper or any other person was actually attempting to hold the plaintiff and/or other children back, this evidence does not suggest that the members of the group were standing quietly watching the road and waiting for traffic to pass. Gandini's evidence that the plaintiff appeared to be excited is in my view consistent with what I have described as milling around on the part of the group.
[42]
[41] I do not think however that there would be any different outcome to the issues of negligence and contributory negligence if I accepted the evidence of Cooper and Morf which suggested that the members of the group were standing quietly waiting for the traffic to pass.
[43]
[42] The presence of the plaintiff child and it would seem one or more other children was obvious to the first defendant as he approached and it was obvious to him that the group intended to cross the road. On his own account, some if not all were not watching the road.
[44]
[43] The duty of a driver aware of the presence of a child or children on the side of the road as he approaches has been discussed in many cases.
[45]
[44] These authorities proceed from a recognition that there is a propensity on the part of a child to move suddenly out onto the road and this is something which a reasonable motorist ought to have in mind and take appropriate precautions to guard against.
[46]
[45] I have been provided by senior counsel for the first and second defendants with copies of many of these cases. Some of these are now of longstanding (see Griffiths v Doolan(1959) Qd.R. 304 and Nye v Peters(1967) 68 SR (NSW) 298).
[47]
[46] In Good v Thompson & Suncorp General Insurance Limited(2001) QSC 287, Ambrose J surveyed many of these cases.
[48]
[47] The situation with which we are dealing here, is it hardly needs to be said very different to the type of case considered by the High Court in Derrick v Cheung(2001) HCA 48 where a child moved into the pathway of a vehicle in circumstances where the driver had no reasonable opportunity to see the child and to take steps to avoid a collision.
[49]
[48] I accept that the first defendant reduced the speed of his vehicle as he drove towards the point where the group of people were standing but I am satisfied that any reduction was marginal and insufficient in the circumstances.
[50]
[49] The first defendant ought by the taking of steps reasonably open to him have been able to manage the situation and avoid a collision. In my view the first defendant was guilty of negligence.
[51]
[50] His negligence consisted in a failure to reduce significantly the speed of his motor vehicle as he approached the point where the plaintiff and other members of the group were standing.
[52]
[51] The circumstances also called for the giving of a warning of the approach of the vehicle by the sounding of the horn.
[53]
[52] I am satisfied that the first defendant's negligence was a cause of the plaintiff's injuries. Had the first defendant sounded the horn of the vehicle I think it probable that this would have brought home the presence of the approaching vehicle to the plaintiff who I infer did not see it approaching. In addition I am satisfied that had the first defendant slowed his vehicle significantly and kept the group under observation he would have been in a position to avoid the collision with the plaintiff in the event of his running onto the road either not having seen the approach of the vehicle or if the horn had been sounded failing to hear and act upon it. However I am satisfied that had an appropriate warning been given the probabilities are that it would have been heard and acted upon by the plaintiff.
[54]
[53] The defendants allege that the plaintiff was guilty of contributory negligence. His mother gave evidence that she had given him instructions about road safety and in particular to look to the right and left and right again before crossing the road. She made it clear however that she was very protective of the plaintiff and that the question of his crossing roads was not something that arose where it could be avoided.
[55]
[54] I think it is plain that having regard to the principles of contributory negligence as they apply to children the plaintiff failed to take proper care for his own safety in attempting to cross the road when he did. It is I think likely that he did not see the approaching vehicle or if he did so he misjudged the situation and his capacity to cross the road safely. See cases such as Gunning v Fellows(1997) 25 MVR 97. The defendants have satisfied me that the plaintiff was guilty of contributory negligence which was a cause of the plaintiff's injuries. I will return to the question of apportionment a little later.
[56]
[55] I now turn to the claim made against the sixth defendant.
[57]
[56] The litigation of this claim was conducted within the parameters of an admission made in the pleadings. The sixth defendant subsequently sought to withdraw this admission but leave was not granted.
[58]
[57] To some extent evidence called by the sixth defendant and the cross-examination of the sixth defendant traversed matters which were the subject of this admission. In my view the purpose of this evidence was limited to the conclusions which should be drawn as to any relationship between the sixth defendant and the third defendant. The sixth defendant denied in the pleadings allegations of a relationship which gave rise to a liability on his part for the actions or admissions of the third defendant.
[59]
[58] In paragraph 3 of the amended statement of claim the plaintiff alleged:
[60]
i. the plaintiff, then aged 8 years old, was enrolled as a tae kwon do student at the "Rhee Tae Kwon Do" academy which was then owned by the fourth defendant, and/or the fifth defendant, and/or the sixth defendant, and operated by them, or one of them, from premises at St Mark's Hall in Bundock Street Belgian Gardens and at 45 Ingham Road Townsville in the State of Queensland;
[61]
ii. as a consequence of the plaintiff's enrolment at the "Rhee Tae Kwon Do" academy a contract existed between the plaintiff and the owner and operator of the academy and it was an implied term and condition of that contract that the owner and operator of the academy would do all things reasonable necessary to ensure the safety of the plaintiff whilst he was attending the academy and participating in the activities of the academy;
[62]
iii. the third defendant was employed as an instructor at the "Rhee Tae Kwon Do" academy operated at St Mark's Hall;
[63]
iv. at about 7.15 p.m., the third defendant, in the course of his aforesaid employment, took a class of about 9 students from the "Rhee Tae Kwon Do" academy, including the plaintiff, on a training run from Mt Mark's Hall and through the streets of Belgian Gardens and Rowes Bay intending to reach the beach at Pallarenda; this was an activity of the academy;
[64]
v. at about 7.30 p.m., the class, including the plaintiff and the third defendant reached Heatley's Parade at Rowes Bay and were on the side of the roadway about to cross Heatley's Parade from its western side to its eastern side;
[65]
vi. also at about 7.30 p.m., the first defendant was driving a Holden Station Wagon registered number '445-OXU' in a northerly direction along Heatley's Parade;
[66]
vii. at about 7.30 p.m., the third defendant crossed Heatley's Parade in front of the motor vehicle driven by the first defendant leaving the plaintiff and the other members of the class on the western side of Heatley's Parade; and;
[67]
viii. the plaintiff then proceeded to cross Heatley's Parade after the third defendant and as the plaintiff was in the process of crossing the roadway he was struck by the motor vehicle driven by the first defendant, whereupon the plaintiff sustained injuries and as a consequence thereof has suffered loss and damage."
[68]
[59] The sixth defendant in his defence pleaded to paragraph 3 of the statement of claim in the following way:
[69]
i. "the Sixth Defendant admits the allegations in paragraph 3(i) save and except that the Sixth Defendant says he owned and operated the "Rhee Tae Kwon Do" Academy.
[70]
ii. As to paragraph 3(ii) the Sixth Defendant does not plead to the allegations because the allegations are matters of law. Save and except the Sixth Defendant denies that any term implied into the alleged contract is in the terms as alleged by the Plaintiff.
[71]
iii. As to paragraph 3(iii) the Sixth Defendant denies the allegation contained therein."
[72]
[60] As will be seen in paragraph 3(i) of the defence the sixth defendant admits the allegations contained in paragraph 3(i).
[73]
[61] Although somewhat awkwardly expressed it is clear that the sixth defendant admits that the plaintiff was enrolled as a student at a Rhee Tae Kwon Do academy and that this academy was owned and operated by the sixth defendant (as opposed to any of the other defendants) from premises at St Mark's hall in Bundock Street, Belgian Gardens and at 45 Ingham Road, Townsville in the State of Queensland.
[74]
[62] This being so the sixth defendant must be taken as the person having ultimate responsibility for the conduct of the Rhee Tae Kwon Do class that the plaintiff attended on the evening of 30/10/89 at St Mark's hall in Bundock Street and in which he was enrolled (see Exhibits 1 and 2) as a student.
[75]
[63] However as will be noted the sixth defendant in his defence at all times denied that the third defendant was a person employed by him.
[76]
[64] Paragraph 5 alleges that the plaintiff's injuries were the consequence of the negligence of the first defendant and/or the negligence of the third defendant and/or the breach of contractual obligation of the fourth defendant and/or the fifth defendant and/or the sixth defendant through the negligence of the servant or agent of the third defendant. Particulars of the acts or omissions of the third defendant alleged to constitute negligence are set out.
[77]
[65] There was some argument before me as to whether the pleading raised a claim against the sixth defendant beyond the claim based upon his vicarious liability for the acts or omissions of the third defendant.
[78]
[66] Whilst the pleading is by no means satisfactory it seems to me that the allegation contained in paragraph 3(ii) taken with paragraph 5 is sufficient to raise a claim based upon a non delegable duty on the part of the sixth defendant to the plaintiff.
[79]
[67] It was conceded that the third defendant as a person exercising control over the group ought to have taken better care for the children in the group when the activities in which they were engaged took them close to and across a busy roadway.
[80]
[68] The evidence does not establish what if any relationship existed between the third defendant and the sixth defendant and in my view the admission made and which has constrained the sixth defendant's defence at the trial of this action does not assist the plaintiff in the matter. There is nothing to indicate any degree of control over the third defendant exercisable by the sixth defendant nor any of the other indicia of a relationship of an employer and employee.
[81]
[69] However, as I have said, I think that the plaintiff is entitled in this case to rely on a non delegable breach of duty by the sixth defendant as the person responsible for the conduct of the Rhee Tae Kwon Do classes in which he was enrolled.
[82]
[70] In The Commonwealth of Australia v Introvigne[1982] HCA 40; (1982) 150 CLR 258 the High Court held that a school authority has a non delegable duty to a student to ensure that reasonable care is taken for that student.
[83]
[71] In Kondis v State Transport Authority[1984] HCA 61; (1984) 154 CLR 672 Mason J (as he then was) (with whose judgment Deane J and Dawson J agreed) discussed the question of non delegable duty and the type of relationship which might give rise to it. In paragraphs 32 and 33 he said:
[84]
"[32] The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilsons' Case to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilson's Case vulnerable to criticism. However, when we look to the classes of case in which the existence of a non delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (at p.755):
[85]
'...the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others...
[86]
That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not represent itself for consideration in Introvigne.'
[87]
[33] The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton the undertaking of the landlord to renew the rook of the house was seen as impliedly carry carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v Angus, may rest on rather different foundations which have no relevance for the present case."
[88]
[72] Mason J had earlier addressed directly the question of the non delegable duty of a school authority in paragraph 30;
[89]
"[30] Likewise with the school authority. It is under a duty to ensure that reasonable care is taken of pupils attending the school. It is the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety (Introvigne, at p.755). the child's need for care and supervision is so essential that it is a necessary inference of fact from the acceptance of the child by the school authority, "that the school authority undertakes not only to employ proper staff but to give the child reasonable care" to use the words of Kitto J. in Ramsay v. Larsen (at p.28)."
[90]
[73] In my view given the analogy between the school situation and the present case and the underlying rationale for the existence of a non delegable duty in that situation the conclusion is justified that the sixth defendant had such a duty of care to the then infant plaintiff in the performance of the various activities associated with the classes and has failed to ensure that reasonable care was taken in the performance of the activities involved.
[91]
[74] So far as contributory negligence is concerned this involves a comparison of the plaintiff's departure from what might be expected of a reasonable eight year old with the negligence of the first defendant and the sixth defendant viewed as a whole. The possible consequences to the plaintiff of a failure by the first defendant to exercise reasonable care in the driving of a vehicle capable of inflicting great harm and of the sixth defendant's failure to ensure that reasonable steps were taken to avoid the plaintiff being injured in such a way place their negligence in a different category to the negligence of the plaintiff whose impulsiveness risked injury only to himself. I would reduce the plaintiff's damages by twenty percent for contributory negligence.
[92]
[75] So far as the contribution between first and second defendant on the one hand and the sixth defendant on the other is concerned each contend that the other should bear the greater responsibility for the plaintiff's injuries as between themselves. I am not convinced that it is appropriate to take this course and think that in all of the circumstances it is reasonable to apportion responsibility equally as between them.
[93]
[76] At the time of the accident the plaintiff was in Grade 3 at the Belgian Gardens State School.
[94]
[77] When admitted to hospital he was found to have a right intra-cerebral haemorrhage and a frontal subarachnoid haemorrhage. He also had a fractured clavicle and contused lungs.
[95]
[78] He remained in the intensive care unit at the Townsville General Hospital until 9/11/89 and was discharged as an inpatient on 17/11/89.
[96]
[79] It appears that he was found to have a right pneumo-thorax and this required intercostal drainage and was complicated by a chest infection.
[97]
[80] Some three weeks after his discharge from hospital he suffered what the late Dr RA Douglas, physician, describes as an epileptic attack. This involved tonic spasm of the muscles, gritting of the teeth but no loss of consciousness. As a result he was for a time placed on medication.
[98]
[81] Although I have a substantial number of medical reports from various sources including reports from specialists engaged by the defendants there is no significant dispute amongst the medical witnesses (none of whom were called to give oral evidence) as to the plaintiff's condition.
[99]
[82] An MRI of the brain revealed that the plaintiff has post traumatic gliosis and atrophy of the anterior aspect of the right frontal lobe consistent with injury to this part of the brain in the accident.
[100]
[83] The plaintiff was seen by Robyn Murray a consultant psychologist who administered a number of psychological tests to him. This occurred in May 2004. The results of those tests appear in her report. In summary the plaintiff has as a result of the brain damage which he suffered problems with memory and new learning. The various cognitive weaknesses found by Ms Murray include mild impairment of auditory attention, mild impairment of mental control, mild impairment of immediate recall of connected verbal material, moderately impaired delayed recall of large amounts of connected verbal material, moderate impairment of delayed recall of newly learned discreet verbal material, mild to moderate impairment of verbal learning abilities, mild impairment of immediate and delayed recall of contextual visual material, and severely impaired incidental recall of complex figural material. There is also mild impaired speed of comprehension of written material and his cognitive flexibility in the verbal domain is weak relative to his overall language abilities. His spelling is at a year six equivalent.
[101]
[84] In her view he has had a limitation of his future study and vocational options and he would be most suited to fairly structured work environments performing relatively routine work.
[102]
[85] A number of specialists who have examined the plaintiff have expressed the view that by reference to the AMA guides the plaintiff's brain damage alone constitutes an impairment of some 12 or 12 and a half per cent of the whole person.
[103]
[86] Dr Richards, a psychiatrist, whilst agreeing with this refers to some criticism in the most recent edition of the AMA guides of the use of percentages as a meaningful way of conveying the degree of psychiatric impairment.
[104]
[87] In addition however to the dementia the plaintiff suffers additional impairment due to adverse personality change. This further limits his overall personal, social and vocational horizons.
[105]
[88] Dr Richards' view is that if the matter were to be considered on the basis of a percentage loss of function by reference to the relevant scales he would be assessed as having an additional five percent loss of function over and above the loss of function ascribable to dementia and Dr Richards thinks that the sum of his disabilities probably exceeds that arising from each of the parts. He refers to a number of aspects of the adverse personality changes the plaintiff has suffered. These are a lack of insight into his cognitive limitations, unjustified optimism, impulsive and aggressive outbursts, and difficulty coping with employees and colleagues.
[106]
[89] There is evidence from his sister and his mother of aggressive outbursts and the plaintiff says that he is aware of these. Dr Richards thinks that as a result of his personality changes he will be likely to direct his time and energy towards impossible personal and vocational goals, and have frequent loss of jobs which he is capable of doing. This will be because of his clashes with management or personal whims of his own. Dr Richards thinks that he will have difficulty making new friends and old friendships will be disrupted and that he will have a tendency to repel and alienate family and loved ones who wish to assist him. This is because of his impulsive, aggressive actions.
[107]
[90] He has been in a relationship with a young woman since 2001.
[108]
[91] The plaintiff was as I have said in Grade 3 at the time he sustained his injuries. The evidence suggests that he was of average intelligence. He had difficulties in some areas at school where his progress was not as good as in others. However I think that overall the conclusion is justified that he was likely to have proceeded in a normal way through his primary and secondary education. This is the view of Ms Murray.
[109]
[92] Her view is that he could have undertaken post secondary studies and worked in skilled or semi skilled occupations.
[110]
[93] The plaintiff returned to school approximately three months or so after the accident.
[111]
[94] His progress or lack of it at school is contained in records and in a number of the reports. Notwithstanding assistance given to him and notwithstanding a number of changes of school the plaintiff did not make satisfactory progress. He completed Grade 12 having obtained the lowest OP score achievable. He describes his own difficulties at school with others and especially problems associated with being teased. He was close to and dependent upon his sister in many respects and she was protective of him.
[112]
[95] After he left school he obtained a position as an apprentice chef but this lasted only for a couple of months or so because the manager expressed unhappiness with his performance. After that he worked as a labourer at a slipways for a period but left because of problems with fibreglass. He then obtained a job at a restaurant where after a couple of days he was offered a position as an apprentice chef. However he encountered difficulties with another apprentice chef and there was as a result tension with the head chef and he left because of the difficulties which arose. For a short period he worked at a sandwich bar and then at a diner where after about eight weeks he left because he and other members of the staff hadn't been paid and the business closed.
[113]
[96] His parents had by this time separated and his father lived on the Sunshine Coast. He went to the Sunshine Coast to live with his father but shortly after his father left and he was unable to meet the rent. He had worked for a period at MacDonald's and then was unemployed for a period.
[114]
[97] He pursued employment in restaurants and similar types of establishments working as a tradesman's assistant to a chef at a restaurant for a few months before coming back to Townsville because his grandfather was very ill. When he returned he found that his full time employment was no longer available and he left. After working at a pizza outlet for two or three weeks he did a chef's course for about a month at Cooloola TAFE at Mooloolaba and secured a position at Harry's on Buderim as an apprentice chef. He managed to complete his apprenticeship and he did so within a relatively brief period. He says that he sought to fast track the apprenticeship which was at this time primarily associated with practical training which he did not find any difficulty in performing unlike the theoretical aspects of it.
[115]
[98] Although he had hopes of continuing in that employment once he had completed his apprenticeship his employment ceased.
[116]
[99] The plaintiff says that he had some difficulties whilst working as a chef with his poor memory for recipes. He would write everything down and carry a book or a clipboard with a template of recipes with him.
[117]
[100] At this time he was living by himself and did not know many people living in the Sunshine Coast area so he decided to come back to Townsville.
[118]
[101] He had developed some experience with panel beating. This was as an interest but one that he found satisfying and he performed some of this work for people but did not receive income for it.
[119]
[102] Upon returning to Townsville he obtained employment with the assistance of his mother at a pizza and pasta place. He saw this as something of a step down from his position at Harry's on Buderim where he had been an executive chef.
[120]
[103] He says he left the employment after some months because he couldn't stand it. He then took up employment at Sorrentos, a restaurant in Townsville on a similar basis but found that the conditions there caused him a good deal of frustration and he left. He then worked for a period as a shop assistant at a music shop.
[121]
[104] He has not worked at a restaurant or as a chef since Sorrentos because he says that he was very disheartened by the work and appeared not to be appreciated for his training and abilities.
[122]
[105] Whilst he had been at the Sunshine Coast he met a financial planner and developed an interest in entering that field. He says that he read a great deal about it and as a result formed an ambition to enter it.
[123]
[106] In 2002 he commenced university studies at James Cook University. This was the first of three universities he has studied at since that time. In his first semester he completed what is described as a certificate of business which enabled him to enter a course at the university. In that course he completed marketing management but dropped another subject. He transferred credits from the certificate towards a bachelor degree course in business and commerce which he started in the second semester of 2002. However he deferred that at the end of the first semester 2003 because he had only completed one subject out of an attempted three. He was having difficulty remembering and applying what he had learned. His partner who he had met in 2001 was a student at James Cook University and completed her studies in 2002. They stayed in Townsville during the first semester of 2003 but following his deferral they went to the Sunshine Coast. He worked for a period as a builder's labourer but then commenced a bachelor degree in marketing at the University of the Sunshine Coast in July 2004. He completed four subjects with the assistance of extra tutoring paid for by the university.
[124]
[107] He then transferred to Griffith University enrolling in the degree course of bachelor of business. He received some credits from his previous studies. In the first semester of 2005 he undertook three subjects but passed only one. He did not have the benefit of extra tutorial assistance at Griffith University. In the second semester of that year he enrolled in three subjects including two that he had previously failed. He passed two of the subjects but failed for a second time economics for managers. This lead to him being placed on probation by the university. In the first semester of 2006 he enrolled in four subjects. He failed all of those subjects and was excluded from the university at the end of the semester but successfully appealed.
[125]
[108] In the second semester of 2006 he repeated three of the subjects from semester one but failed them and has been excluded from the university. He has not been a student since the end of 2006.
[126]
[109] At the time of the trial he was working on a casual basis in telemarketing and real estate. He sees this as having some advantage to him in achieving his aim to become a financial planner.
[127]
[110] Dr Richards' view is that the plaintiff because of his intellectual impairment is not capable of achieving the necessary tertiary qualifications as a financial planner and it was not contended otherwise. He thought that but for the accident he would have had no difficulty achieving these. In Dr Richards' view the plaintiff is best suited to routine hands on tasks of the sort he would undertake as a trained chef.
[128]
[111] The plaintiff presented as a pleasant and courteous young man. He exuded confidence in the witness box but I accept that this may be somewhat misplaced confidence as Dr Richards has pointed out in his reports.
[129]
[112] The plaintiff's intellectual impairment and his personality changes limit his social life as well as his employment. He suffers regular headaches. These affect him at least four times a week. He takes medication for these.
[130]
[113] He has had to avoid contact sports. He does not consume alcohol. He says that this affected him adversely and he became unreasonable and uncontrollable in his attitudes. He is aware that he is dogmatic and intolerant in dealings with people.
[131]
[115] I assess his general damages in the sum of $85,0000. I allow interest at two percent of $35,000 producing a figure of $12,460.
[132]
[116] The difficulties involved in attempting to make any assessment of the plaintiff's economic loss are obvious. As Mahoney JA said in Settree v Roberts(1982) 1 NSWLR 649 (unreported on this point).
[133]
"In order to determine what, had he not been injured, the plaintiff would or might have earned, the court must form conclusions as to, inter alia, how long he would have lived; whether he would have entered the workforce; whether he would have obtained employment; what income he would have derived from that employment; whether, at some time or times during his working life, he would have been disabled from working. Each of these is affected by substantial uncertainty."
[134]
[117] His Honour went on to refer to the use that might be made of statistics and life tables and award rates in such an exercise.
[135]
"I think it should be recognised that, in assessing compensation in such a case as this, the court is involved directly in the valuation of the capacity or chance. If this be so, then, consequently, it should, I think, be recognised that when the court places money value upon such a capacity or chance, it is, in whole or in part, involved not in a process of calculation, but in the making of a social or valued judgement. It is, in other words, determining what at a given time, society, i.e. the jury or judge, sees as the value of capacity or chance to earn money in the future."
[136]
(These passages appear in the judgement of Blackburn CJ in D'Ambrosia v De Souza Lima60 ACTR 18.)
[137]
[119] The plaintiff's mother is employed as what she describes as a retail teacher at a TAFE College. His sister is undertaking tertiary education in a psychology field. The plaintiff's parents are separated. The plaintiff's father is qualified as a laboratory technician.
[138]
[120] Mahoney JA in Settree v Roberts (supra) thought that the possibility of drawing inferences from a family background was somewhat problematical but I think that in the present case it is reasonable to assume that the plaintiff's family placed value upon their children's education and were ambitious for them. The plaintiff's mother emphasised her Sicilian background and the strong family values associated with this. I think that the contingency that the plaintiff would have completed a tertiary education with the employment and income advantages which flow from that is one of real weight in this case.
[139]
[121] Here the parties have approached the matter upon the traditional basis of assessing past loss of income and allowing interest on the net loss involved taking into account any moneys received by way of income substitution and allowing for future economic loss or impairment of economic capacity by arriving at a present value of future recurring losses based upon an assumed annual or weekly income. However I think that in a case such as the present where the plaintiff was but eight at the time of his injury and where such a long period has elapsed between the time of the accident and the present and where he is still at a young age the appropriate course to take is to fix a global sum for both past and future economic loss making some allowance within that sum for various factors and the many imponderables associated with the exercise. During the earlier part of this period the plaintiff would have been likely to have obtained any tertiary or similar qualifications he was to achieve during his lifetime and allowance has to be made for the time that he would have been out of the workforce for this purpose. All of the usual contingencies and vicissitudes have to be allowed for.
[140]
[122] This approach is it seems to me consistent with that adopted by Mahoney JA in Settree v Roberts (supra) and Blackburn CJ in D'Ambrosio v De Souza Lima (supra).
[141]
[123] The parties have agreed on special damages in the sum of $10,385.77 and interest in the sum of $1,001.90.
[142]
[124] I have before me reports from accountants tendered by the plaintiff on the one hand and the first and second defendants on the other hand. Mr Jessup who was called for the plaintiff prepared calculations based upon the assumption that the plaintiff would have become an investment advisor. As I have already indicated the plaintiff had during the time he lived at the Sunshine Coast developed the ambition to enter this field but the medical evidence suggests that this is beyond his capacity other than at the lowest level. Counsel for the plaintiff contended for findings based upon the assumption I have referred to in view of the plaintiff's ambition to become a financial planner.
[143]
[125] The calculations suggest a gradation of roles in this field commencing with the position of a graduate with a business degree proceeding to become a para planner and then a qualified associate and then a financial planner and ultimately a senior financial planner. Dr Richards perhaps not entirely without justification described this as "a hierarchy with commissioned officers, NCOs, footsloggers and industry hangers on."
[144]
[126] Mr Jessup obtained information from a financial planner as to income levels and as will be seen from Exhibit 29A his assessment includes regular increases in income associated with steps up the ladder and also further increases within particular levels in the financial planning ladder. What is also noteworthy is an allowance for bonuses escalating year by year.
[145]
[127] It appears that the average weekly income that the plaintiff would on this assumption have earned between now and 2046 when he would turn 65 was taken and an allowance was made for what is said to be the plaintiff's residual earning capacity and the present value of such a loss over that period was established.
[146]
[128] In assessing the plaintiff's residual earning capacity and for the purposes at least in part of establishing what he has earned to date the award rate applicable to cooks has been taken. The plaintiff's work history is set out in annexure 7 to Exhibit 29(c). Strong objection was taken to this process by counsel for the first and second defendants. As will be seen, it attempts to establish a percentage of time worked upon the basis of the weeks worked and the weeks that the plaintiff was unemployed and the period that the plaintiff was full time at university is shown as weeks not available for work. However, in striking a percentage of 37.56 percent the period during which the plaintiff was studying full time is included in the total. This percentage is then applied to the award rate of a cook to establish a residual earning capacity. I do not think this is an appropriate way to calculate residual earning capacity. The plaintiff has now ceased university and is unlikely it seems to me to be able to re-enter it. The evidence suggests that there would be little point in his doing so. It has to be accepted that the periods that are shown in the annexure as periods during which the plaintiff was at university are periods which would be available to him to work.
[147]
[129] I do not think that in the circumstances of a case such as this it is possible to confine attention when attempting to calculate damages flowing from loss of income to a single occupation or profession as has been done here, notwithstanding the plaintiff's expressed desire to enter this field. The imponderables are simply too great and the more appropriate way I think is to look at average weekly earnings as Mr Calabro has done but to take into account the possibility that the plaintiff might have done better than this as well of course as the offsetting contingencies such as injury in some other circumstances, illness or some other adverse circumstance.
[148]
[130] I think the plaintiff is capable of working as a chef for which he is qualified but it is plain on my assessment of him that he will have difficulty maintaining employment because of his personality problems and is likely to be out of work for significant periods. It may be that he will work as he has in the past for short periods in the catering or restaurant industry and other jobs outside of that area where he would be likely to earn less. He may attempt positions beyond his capacity. He could, on Dr Richards' assessment, carry out some work at the lowest levels of the financial planning industry. I think that his residual earning capacity is substantially less than that allowed for by Mr Calabro but significantly greater than that allowed for by Mr Jessup.
[149]
[131] I have already referred to some of the imponderables involved in the assessment of economic loss in this case. Some are referred to in the passages from the judgment of Mahoney JA set out earlier and these too are taken into account. The plaintiff may have done very well indeed but the contrary contingencies must also be allowed for.
[150]
[132] In adopting an appropriate global sum all of these matters have to be allowed for. The components of such a sum must include loss of superannuation (past and future) interest on any pre-trial component of economic loss (after allowing for the receipt of moneys from Centrelink) as well as the plaintiff's loss of earnings.
[151]
[133] A mathematical approach is impossible in such a case.
[152]
[134] Doing the best I can I allow a global sum of $800,000 for economic loss.
[153]
[135] The parties have also agreed upon a claim for past care and assistance in the sum of $2,000 and interest in the sum of $716 in relation to this.
[154]
[136] There is evidence that the plaintiff would be assisted by counselling by a psychologist and there is evidence of the costs which would be involved in the ten sessions suggested. In addition there is in the plaintiff's statement, evidence of visits from time to time to medical practitioners in relation to his complaints about headaches. The claim under this head is some $2,400 and I allow the sum of $2,000 which I think is probably a modest allowance in the circumstances given the plaintiff's age.
[155]
[139] I give judgment for the plaintiff against the first and second defendants and the sixth defendant in the sum of $730,850.93.
[156]
[140] I order that to the extent of one half of the judgment sum to be recovered by the plaintiff, the first and second defendants on the one hand and the sixth defendant on the other, indemnify one another against their liability to the plaintiff for the judgment sum.
[157]
[141] I will hear what the parties have to say about the question of costs.