Shaw v Menzies & Anor [2011] QCA 197

I refer you to my earlier posting regarding the trial decision by Martin J.

Appeal issues: liability (Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 28) and gratuitous care (59 of the Civil Liability Act 2003).

Liability

The unanimous decision of White JA, Margaret Wilson AJA and Peter Lyons J allowed the plaintiff’s appeal and apportioned liability 75/25% in the plaintiff’s favour (previously 70/30% against the plaintiff). In so doing their Honours considered Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld), s 28(2) could not operate in circumstances to allow the truck to move from the centre right lane to turn left, in circumstances when the presence of the plaintiff on the motor cycle was known.  The plaintiff’s contributory negligence flowed from a finding in attempting to pass the truck in the left lane in circumstances where the truck had indicated an intention of turning left, albeit then returning to the middle lane, but then slowing again.

[41]

Beyond that, the defendant’s own evidence shows that, as he approached the Balham Road intersection, he knew the plaintiff’s motorcycle to be in the left-hand lane, either beside or a short distance behind the semi-trailer, and travelling at a speed similar to that at which the defendant was travelling. Even if the motorcycle were behind the defendant’s vehicle, the fact that the defendant was slowing down was likely to reduce the distance between the vehicles, and increase the risk of a collision. In those circumstances, the defendant could not safely make the turn, without permitting the plaintiff to pass, or satisfying himself that the plaintiff had slowed sufficiently so that the defendant could safely make the turn. Neither of those things occurred. The conclusion that the turn could not, in the circumstances, be made safely, is supported by his Honour’s finding that the defendant’s manoeuvre “was an inherently dangerous one”, and by his attribution of liability to the extent of 30 per cent against the defendant.

[42]

The defendant’s reliance on s 28 of the TORUM Regulation was misplaced. The defendant was not authorised to approach and enter the intersection except from within the left-hand lane. It follows that his manoeuvre made for the purpose of turning left into Balham Road was not authorised.

[43]

The learned primary Judge’s reasons did not consider in detail the issues raised by s 28(2) of the TORUM Regulation. It follows from what has been said earlier that his Honour erred in finding that, by virtue of s 28(2), the defendant “was entitled to move from the middle lane when [he] sought to turn into Balham Road”.

[44]

The only provision of the TORUM Regulation identified by his Honour was s 28(2). It would be erroneous to find that the plaintiff was “obliged under the Regulation to give way to the vehicle turning left”, if that finding were based on s 28(2). His Honour may have had in mind s 143 of the TORUM Regulation, prohibiting a driver passing to the left of a vehicle displaying a “Do Not Overtake Turning Vehicle” sign, if that vehicle is turning left, and is giving a left change of direction signal. To find a breach of this provision, it would have been necessary to make findings as to the relative positions of the motorcycle and the semi-trailer at the time when the defendant commenced to indicate, and to make, a left turn. No such findings were made.

[45]

The observation of the learned primary Judge that the manoeuvre being undertaken by the defendant in turning left was an inherently dangerous one, is, with respect correct; all the more so if the manoeuvre were not authorised by s 28(2) of the TORUM Regulation.

[46]

There remain, however, findings which point to contributory negligence on the part of the plaintiff, namely, the finding that the defendant’s left turn indicator had been activated, and was visible to the plaintiff; and the finding that the defendant’s vehicle was slowing down as it approached the Balham Road intersection (indicative of, at least, the possibility that the defendant’s vehicle was not proceeding directly through the intersection along Granard Road, but might turn left). The significance of these matters is, however, affected by the fact that the defendant turned the prime mover to the right, even if only very briefly, before turning left to Balham Road. It is also affected by the fact that the final turn to the left must have occurred very shortly before the collision, leaving the plaintiff very little time at that point to take any evasive action.

Gratuitous care

Their Honours allowed an award of gratuitous care importantly rejecting the notion that the plaintiff’s care in circumstances of group tasks (e.g. family units and meal preparation) where the plaintiff benefited as part of the group, should necessarily be shortened because the commercial cost of supplying the plaintiff’s needs should be assessed by consideration of a single unit. The rationale for this is the plaintiff’s personal circumstances within the family unit for example may change.

.

[73]

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.24

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]

The meaning to be attributed to gratuitous services in the legislation is its meaning at common law. In CSR Ltd v Eddy25 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.”26

And that

“… 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.”27

[75]

Their Honours continued:

“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.” …”28

[76]

Mr Williams submitted that the trial judge was correct to reject Ms Stephenson’s evidence because she did not differentiate between domestic activity for the whole family and assistance to the plaintiff in respect of the tasks for which damages were claimed. That is not correct, as the passages from the trial transcript, set out above, make plain. Mr Williams was also concerned that Ms Stephenson took a commercial approach to the care needed by the plaintiff rather than dissecting this particular family, working out the hours devoted to him alone as best that might be achieved, and applying a commercial rate to those hours.

[77]

While it is true that it will be necessary to assess the needs of a plaintiff in the context of his own situation, nonetheless, in regarding the injured plaintiff as an isolated unit whose injuries generate a need for services to him, the approach in Van Gervan v Fenton29, confirmed in CSR v Eddy30, is by reference to the cost of providing those services generally in the market. It would not, therefore, appear consistent with that authority to argue that in a family context a shorter period of time would (or should) be devoted to a plaintiff’s needs when consideration is being given to group tasks than the market cost of servicing those needs. Sensibly that assessment must be done on the basis of satisfying those needs as a single unit. This must be so, even more compellingly, when considering future care. Families break down, illness in a partner might intervene, children’s needs change and so on. There was a tendency, evident on the appeal, of substituting the lawyers’ personal understanding (or, more accurately, lack of understanding) about domestic tasks, rather than to defer to an acknowledged expert in the area. There was no sound reason advanced to depart from the model proposed by Ms Stephenson.

 

24 Kriz v King [2007] 1 Qd R 327 at [18]; [2006] QCA 351.

25 [2005] HCA 64.

26 At [6].

27 At [7].

28 At [20].

29 (1992) 175 CLR 327; [1992] HCA 54.

30 [2005] HCA 64 at [7].

His Honour awarded damages of $790,233.85 to the plaintiff before apportionment noting that the insurer was “entitled to a refund from the net judgment after contribution of $4,000” pursuant to s 51 of the Motor Accident Insurance Act 1994 (Qld). That seems to be a reference to rehabilitation expenses to Axiom College. Section 51 provides a method for this expense to be recovered. Because it was mentioned in the judgment it may be assumed that the second respondent complied with the s 51(4) explanation to the plaintiff requirement. By s 51(9A), the expense is deemed to be the injured person’s expense and allowed. If there is a reduction because of contributory negligence the quantum of the expense is set off after apportionment. His Honour’s total before apportionment of $790,233.85 does not include this expense of $4,000 which should be added in. Damages additional to those awarded below are:

Interest on past economic loss $23,020.78

Past gratuitous care $47,302.75

Future gratuitous care $80,000.00

Rehabilitation expenses $ 4,000.00

$154,323.53

plus $790,233.85

 

$944,557.38 The figure of $944,557.38 must be apportioned to reflect the plaintiff’s contributory negligence of 25 per cent giving a figure of $708,418.04 from which must be set off the $4,000 for rehabilitation expenses. The final figure is $704,418.04.

 

Brisbane Barrister – David Cormack

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