CLA: even for an amputee gratuitous care needs to be established under s.59

Brown v Holzberger & AAI Limited [2017] QSC 54

McMeekin J

The plaintiff, Mr Brown suffered serious injuries when his motorcycle collided with the first defendant’s motor vehicle, Mr Holzberger at an intersection. The plaintiff’s injuries culminated in a below knee amputation. At the time of the accident, the plaintiff was 19 years old.

The circumstances of the accident were that the first defendant turned right, across a two-way street, into the plaintiff. The plaintiff’s motorcycle collided with the rear left panel of the first defendant’s vehicle.

In issue was whether the accident occurred because of the first defendant’s negligence, particularly the location of the plaintiff’s motorcycle at the time of the accident and the speed at which the plaintiff was travelling and damages.

Liability

Liability turned on the conflicting versions of events.

On the plaintiff’s version of events, the first defendant’s vehicle was slowing down as it approached the intersection but continued to turn into the path of the plaintiff. Accepting this, the plaintiff should have been in plain view of the first defendant.

The first defendant recalled that there was “plenty of room” to make the turn and that he saw no motorcycle approaching the intersection. Concurring with this was evidence from a retired police officer and his daughter who were in a vehicle exiting the street which the first defendant turned into. Both witnesses recalled that they did not see any motorcycle or headlight approaching from the eastbound direction.

The final witness described the speed at which the motorcycle was travelling as it passed her vehicle as a “bullet out of a gun”. Relevantly, this witness was approximately 47 metres from the impact point.

In conjunction with the witness evidence, McMeekin J also considered the plaintiff’s past traffic history, noting that the plaintiff showed a disregard for the road rules with four speeding offences in less than two years and three suspensions. As part of this consideration, his Honour considered the res gestae exception to hearsay for a statement made by the plaintiff shortly after the collision.

The Res Gestae exception

[45] Finally the plaintiff seeks the admission of an out of court statement made by him to Mrs Turner. The defence objects to the admission of the evidence as being a hearsay statement and not within any recognised exception. The plaintiff supports its reception as coming within the res gestae exception.

[46] The statement was made by Mr Brown to Mrs Turner as he lay on the road after the accident. The time that had elapsed between the occurrence of the accident and the making of the statement cannot be precisely known but it was not long. The plaintiff submits it was about a minute. I accept that it could not have been much longer than that. Mrs Turner reported that Mr Brown said to her: “I thought he’d stop”.[44]

[47] In my opinion the statement is inadmissible for two reasons. First it is not shown to be relevant. Secondly, it is not within the res gestae exception.

[48] The evidence goes to the plaintiff’s state of mind. That is not a relevant fact in the case. It might possibly have been relevant if Mr Brown wished to relate his state of mind to some action or inaction of his. So, for example, if he had said I veered left when I saw the vehicle commence its turn then he might have been asked why and he could have answered because I thought that he would stop. His actual evidence was, effectively, that he had no time in which to act. Or he might have said I thought it safe to overtake at the point I did and then accelerate because I thought that he would stop. But unrelated to any action or decision not to act I fail to see what Mr Brown thought at some indeterminate point in time is relevant.

[49] If I am wrong in that I would still not allow the evidence.

[50] The plaintiff relied on the dicta of Kirby P (as his Honour then was) in Sydney Electricity Authority v Giles[45] and Muir J’s decision in Ross v Hamilton[46] as authorizing the receipt of the evidence here.

[51] In Giles, after an extensive review of authorities, Kirby P said:

“The foregoing authorities make clear the preconditions for the admissibility of hearsay evidence under the res gestae Rules. An out-of-court statement will be admissible as part of the res gestae, and hence admissible as capable of proof of that which it asserts, if the statement was made in circumstances:

(1) which are approximately, if not exactly, contemporaneous with the event or transaction the subject of the Court’s inquiry; and

(2) which provide an assurance of the reliability and veracity of the statement. Such an assurance will ordinarily arise where:

(a) the statement is spontaneous or contemporaneous with the event or transaction the subject of a Court’s inquiry; or

(b) the statement is made by the maker while involved in the event or transaction the subject of the Court’s inquiry.”

[52] In Ross Muir J accepted Kirby P’s analysis in Giles as accurately stating the law.

[53] While I think the statement here comes close to being a narrative after the event it is probably sufficiently contemporaneous to come within the rule – at least there are other cases where greater intervals have been held not to destroy that essential element of substantial contemporaneity. It is the second condition that presents the problem.

[54] What is evident from the cases is that the onus lies on the party seeking admission to show that the possibility of concoction or distortion can be disregarded: Ratten v The Queen [1971] UKPC 23; [1972] AC 378 per Lord Wilberforce at 391 cited with approval in Pollitt v The Queen[47] by Mason CJ[48] and Brennan J[49] and the effect of which was adopted in Walton v The Queen.[50] The relevant principle I take to be as follows from the majority judgment in Walton:

“An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten at 389–90; The Queen v Andrews [1987] AC 281 at 300–1: see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle at 531. Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267 at 273; 3 ALR 97. But if sometimes there is an element of hearsay in evidence which is led of statements made by a person other than a witness for the purpose of founding an inference concerning that person’s state of mind, the justification for disregarding that element of hearsay may be thought to be of a similar kind. Such statements will rarely be purely assertive. Ordinarily they are reactive and are uttered in a context which makes their reliability the more probable. On the other hand, if a statement by a person about his state of mind is a bare assertion not amounting also to conduct from which a relevant inference can be drawn, then it ought to be excluded as hearsay.”[51]

[55] In Eaton v Nominal Defendant,[52] a case not so different to this one, Pincus JA explained the difficulties facing a plaintiff in meeting the test of excluding possibilities of concoction or distortion:

“Excluding mere possibilities is always a difficult task and one must take it that what the judge meant was that the circumstances must be such as to make concoction very unlikely. That condition is not satisfied here. The plaintiff’s case was that his motorcycle left the road while he was overtaking another vehicle. Assuming that to be so, it is not absurd to suppose that when explaining what happened to others fairly shortly after the event, the plaintiff might have given an exaggerated or untrue version which placed the entire blame for the incident on the driver of the other vehicle. That might have been done, not with a view to bringing proceedings, but because of the tendency which people sometimes have to justify themselves in the eyes of others.”

[56] As senior counsel for the second defendant submits there is a further reason to be concerned here about the risk of self-justification – given his traffic history Mr Brown faced the almost certain loss of his license if he was thought to have breached the road rules in an egregious manner. There is no suggestion here that Mr Brown was not thinking quite clearly when he spoke to Mrs Turner and so possibly mindful to blame the other driver or protect his license.

[57] Ross does not really assist the plaintiff as it is plainly distinguishable on its facts. There an injured man was heard to say, within minutes of being struck by a motor vehicle as he crossed a road at traffic lights, “little green man” repeatedly. The statement was taken to be proof that at the time he crossed the road and was struck he had a green pedestrian sign entitling him to cross and conversely that the motorist had run a red light. Muir J held the statement to fall within the exception principally because at the time that it was made the injured man was “incapable of lucid conversation” and that “the utterances were instinctive in nature and were made without any realistic possibility of the plaintiff’s having arrived at his state of mind concerning the status of the pedestrian sign by application of thought processes which could have amounted to a reconstruction of events…” That essential element of a lack of lucidity is not present here.

[58] Before leaving the point I should say that it does not seem to me to affect the matter greatly whether the statement be admitted or not. Unless tied to a particular point in time and a particular decision of Mr Brown’s the statement leads nowhere.

Discussing the witness evidence, his Honour noted:

[60] The first problem for Mr Brown is that his evidence, to put it charitably, is not accurate. His claim that he had not exceeded the speed limit that day is wrong and in my view probably well known to him to be wrong. I refer at this point to Ms Smith’s evidence. I do not accept that Ms Smith’s observations are unreliable, as was submitted, because she failed to bring into account the greater rate of acceleration of a motorcycle compared to her vehicle. She was well acquainted with motorcycle characteristics and more familiar than most with that acceleration. I have no doubt that her account that Mr Brown accelerated away from her at a speed well in excess of the speed limit was a reliable one. The warming up of the tyres beforehand is consistent with the conduct observed and not in dispute.

[61] His traffic history shows that he was not averse to exceeding the speed limit. I accept that he was doing so as he left a set of traffic lights a few blocks back from the Elliott Heads intersection. It would not be out of character for him to have again done so again when leaving the Elliott Heads intersection.

[63] Mr Brown’s version requires that Mr Holzberger’s lookout was not just poor but quite improbably nonexistent. There are two obvious points to make if Mr Brown’s version be accepted. The first is that he had to have been in Mr Holzberger’s clear view over about 150m yet was not seen. The second is that MrHolzberger had to commence his turn when the motor vehicle was only meters from him. It is common ground that the headlight of the motorcycle was illuminated and so easily visible …

[66] Finally there is Mrs Turner’s evidence. Mrs Turner’s evidence is the crucial testimony. For Mr Brown’s version to be accepted she must be wrong in her estimate of his speed, in her positioning of the place where he overtook, and in her estimate of the time that elapsed between him overtaking and the accident. I see no reason to think that she was wrong in any aspect. As the second defendant’s calculations of relative speeds shows her version is internally consistent. Her account is consistent with the versions of the other witnesses. Significantly her account is in complete accord with both Mr Holzberger and Ms Stolzenberg… [I]mportantly her evidence explains the observations of the others. They did not see the motorcycle because it was not there to be seen. It remained hidden behind her vehicle until effectively a moment before the collision.

As to the reliability of one witness affected by the passage of time, his Honour found:

[71] … That a witness has no recollection of seeing something years after an event does not render unreliable their evidence of what they say they did see. There was no particular reason for Mrs Turner to note or recall the presence of the slowly moving vehicle in a side road ahead and off to her left. And the submission ignores the fact that she had very limited opportunity, only a second or two, to register the presence of that vehicle before two things occurred – she was startled by the overtaking motorcycle and the first defendant’s motorcycle vehicle moved in front of the Stolzenberg vehicle.

Rejecting the plaintiff’s testimony as to his driving leading up to the subject accident, McMeekin J held:

[74] … I conclude that the subject accident occurred because of Mr Brown’s negligence. That negligence consisted of overtaking the vehicle being driven by Mr Kerridge on its left hand side and in contravention of the road rules, when only a short distance from the intersection with Reddan St, and at a great speed, as Mrs Turner related. By then Mr Holzberger had commenced his turn to the right and was no longer looking down FE Walker St. That is why he did not see the motorcycle. There was no action reasonably open to Mr Holzberger to then avoid the accident.

Damages

Had the plaintiff been successful, his Honour would have awarded $891,846.48 in damages. In relation to lost earning capacity and s.55 of the of the Civil Liability Act 2003 (CLA)  McMeekin J referred to his Honour’s earlier decision of Nucifora & Another v AAI Limited[62] at [96]:

“It may be doubted that the provision has affected any change to the position at common law. The effect of the section has been considered in Ballesteros v Chidlow[63], Reardon-Smith v Allianz Australia Insurance Ltd[64] and Allianz Australia Insurance Ltd v McCarthy.[65] The usual principles continue to apply.

At least since Graham v Baker[66] it has been well established that a plaintiff must demonstrate that his or her earning capacity has been diminished by the accident-caused injury and that that diminution “is or may be productive of financial loss”. Those requirements plainly continue: McCarthy.[67] In determining the “may be” issue relevant in this case the principles explained in Malec v JC Hutton Pty Ltd[68] apply.[69] There is the “double exercise in the art of prophesying” involved – what the future would have been if the injury had not occurred and what it is now likely to be.[70] As usual the fact finder must state the factual findings underpinning the award and display the reasoning behind the award sufficiently at least for the parties, and the Court of Appeal if called on, to comprehend the result, although the methodology need not include an explicit statement of a formula: Reardon-Smith.[71] An “experienced guess” has been held to be a sufficient response to the facts presented: Ballesteros.[72]

Similarly, McMeekin J was content to resort to an “experienced guess” for the past and in relation to the future:

[107] Obviously I must assess the prospective loss on very imprecise materials.

[108] I assume a present day sustainable earning capacity if uninjured of $1008 net per week ie the average mentioned in the ABS statistics. Eventually Mr Brown will probably be driven back to sedentary employment and a much more modest sustainable income say of around $500 per week. He may retire earlier than he otherwise would have simply through weariness at coping with the problems his stump will give him. He is more vulnerable to losing employment because he will probably need time off to cope with eruptions and breakdowns of the stump. If uninjured he may have achieved his ambition of getting work in the mines and of running his own business. He might then have achieved a greater income than average wages for his trade. It is unlikely that he will achieve those goals now, even though, as Mr Fraser said, amputees have been known to obtain more senior mining positions.

[109] Doing the best I can I assess the future loss at $500,000.

McMeekin J found that the plaintiff did not meet the threshold in s.59 of the CLA, despite the nature of the injuries – Shaw v Menzies & Anor [2011] QCA 197:

“The Civil Liability Act was introduced in 2003. The requirements for any award of damages for gratuitous services provided to an injured person thereafter are clear:

the services must be necessary;

the need must arise solely out of the injuries;

the services were provided for at least six hours a week for at least six months after the injury.

Accordingly, a plaintiff who includes a claim for damages for gratuitous care must adduce sufficient evidence to meet each of those thresholds. It has been a long-standing practice that solicitors advise clients making a claim for damages for personal injury, particularly where the claim includes a component for gratuitous care, to keep a weekly diary recording tasks and time to perform them by family members. As this case has demonstrated, failure to have some system, because of the requirements of s 59, may mean that a deserving plaintiff may not cross those thresholds.”[74]

McMeekin J found there was insufficient evidence as to the threshold period, together with the need for the assistance. In respect of the threshold period, the plaintiff’s case was not assisted because there was no system, such as a diary to record tasks etc.

As to need for the tasks, the plaintiff’s mother conceded that she performed 90% of the housework before the injury and did most of the cooking. His Honour considered AAI Limited v McQuitty[94] and noted that award is not to be made unless “the services are provided, or are to be provided” and was not satisfied with the evidence that this threshold was met.

David Cormack – Brisbane Barrister & Mediator

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