French v QBE Insurance (Australia) Limited

[2011] QSC 105

SUPREME COURT OF QUEENSLAND

CITATION:

French v QBE Insurance (Australia) Limited [2011] QSC 105

PARTIES:

ELIZABETH FRENCH
(plaintiff)
v
QBE INSURANCE (AUSTRALIA) LIMITED
(first defendant)
REGENT TAXIS LIMITED (ACN 009 705 113)
(second defendant)
BRANDT LINDEN SHAMON
(third defendant)
RACQ INSURANCE LIMITED
(fourth defendant)
NOMINAL DEFENDANT
(fifth defendant)

FILE NO:

BS 7241 of 2008

DIVISION:

Trial

PROCEEDING:

Civil Trial

DELIVERED ON:

13 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

24-26 May and 25 June 2010

JUDGE:

Fryberg J

ORDERS:

Judgment for the plaintiff against the first and fifth defendants for $762,350 on her claim.1.         

Judgment for the second, third and fourth defendants against the plaintiff on her claim.2.         

Judgment for the first defendant against the fifth defendant for contribution of $152,470 on its claim against the fifth defendant.3.         

Judgment for the first defendant against the third and fourth defendants on their claim for contribution against it.4.         

Judgment for the second defendant against the third, fourth and fifth defendants on their claim for contribution against it.5.         

Judgment for the third and fourth defendants against the first and second defendants on the first and second defendants’ claim for contribution against them.6.         

Judgment for the fifth defendant against the first defendant for contribution of $609,880 on its claim against the first defendant.7.         

Judgment for the fifth defendant against the second defendant on the second defendant’s claim for contribution against it.8.         

Further orders to be made after a further hearing.9.         

CATCHWORDS:

Carriers – Carriage of passengers – Carriage by land – Injury to persons – Generally – Taxi driver –  Duty - Intoxicated passenger – [93], [94]

   –     –     –     –     –  Taxi company – Duty – Control and instruction of drivers – [145]

    –     –     –     –  Contributory negligence – Taxi passenger incapacitated by alcohol – [193]

Torts – Law of torts generally – Joint and several tortfeasors – Contribution – Apportionment – Principles of apportionment – [214]

   –    Negligence – Essentials of action – Standard of care – Generally – “likely seriousness of the harm” – Level of specificity of harm – Civil Liability Act 2003, s 9(2)(a) – [77]

    –     –     –     –     –  Intoxication - “of itself”  – Civil Liability Act 2003, s 46(1)(c) – [104]

    –    –   Contributory negligence – Generally –  Presumption from intoxication – Concurrent claim for breach of contract – Breach of express term to drive to specified address – Not a breach of a “duty of care” – Law Reform Act 1995, s 5 “wrong” – Not a “breach of duty” – Civil Liability Act 2003, s 47(1), sch 2 – [162], [163]

    –     –     –     –    –  Rebuttal –  Contribution to damage not contribution to breach of duty – Civil Liability Act 2003, s 47(3)(a) – [169]

    –    Negligence – Road accident cases – Liability of drivers – Generally – Breach of duty – Failure to investigate or help injured pedestrian – No knowledge of pedestrian’s involvement – [43]

    –     –     –     –     –   Causation –“the harm” – No need for normative evaluation in every case – Civil Liability Act 2003, s 11(4) – [55]

   –     –  Fatal accidents legislation – Damages – Intoxication of deceased – Presumption of contributory negligence by deceased – Civil Liability Act 2003, s 11 – [167]

Civil Liability Act 2003 s 9, s 11, s 23, s 24, s 46, s 47
Law Reform Act 1995 s 5, s 10, s 17(5)
Succession Act 1981, s 66
Supreme Court Act 1995, s 17
The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952, s 10
Transport Operations (Passenger Transport) Act 1994 Transport Operations (Passenger Transport) Regulation 1994, s 26, s 143AG

ACQPty Ltd v Cook [2008] NSWCA 161; 72 NSWLR 318
Adeels Palace Pty Ltd v Moubarak[2009] HCA 48; (2009) 239 CLR 420, cited
Astley v Austrust Ltd[1999] HCA 6; (1999) 197 CLR 1, cited
Barrett v Ministry of Defence[1994] EWCA Civ 7; [1995] 1 WLR 1217
Cal (No 14) Pty Ltd v Motor Accident Insurance Board[2009] HCA 47; (2009) 239 CLR 390
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” [1976] HCA 65; (1976) 136 CLR 529
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649, cited
Cole v South Tweed Heads Rugby Club: [2004] HCA 29; (2004) 217 CLR 469, cited
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32, cited
Graham Barclay Oysters Pty Ltd v Ryan[2002] HCA 54; (2002) 211 CLR 540; [2003] 1 AC 32, cited
Griffith v Lindsay (1998) TLR 23/10/98
Hawthorn v Hillcoat[2008] NSWCA 340, cited
Joslyn v Berryman[2003] HCA 34; (2003) 214 CLR 552 WLR 318, cited
Lawes v Nominal Defendant [2008] 1 Qd R 369; [2007] QCA 367, cited
Manley v Alexander[2005] HCA 79; (2005) 80 ALJR 413, cited
Podrebesek v Australian Iron and Steel Pty Ltd[1985] HCA 34; (1985) 59 ALJR 492, cited
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113; [2002] NSWCA 205, cited
Staderman v Dakin[2005] ACTSC 112, cited
State Rail Authority of New South Wales v Schadel [2001] NSWCA 394, cited
Stuart Pty Ltd v Condor Commercial Insulation Pty Ltd [2006] NSWCA 334, cited
South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, cited
Vale v Eggins[2006] NSWCA 348, cited
Woolworths Ltd v Strong[2010] NSWCA 282, cited
Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65

Commonwealth of Australia, Review of the Law of Negligence: Final Report, September 2002
Legislative Assembly (Qld), Record of Proceedings, 50th Parliament, 7 August 2001
Professor Harold Luntz, Assessment of Damages for Personal Injury and Death, Fourth Edition, LexisNexis Butterworths, 2002

COUNSEL:

R Douglas SC and C Newton for the plaintiff
K Holyoak for the 1^st and 2^nd defendants
D North QC and M O’Sullivan for the 3^rd, 4^th and 5^th defendants

SOLICITORS:

McDonald Balanda & Associates for the plaintiff
McInnes Wilson for the 1^st and 2^nd defendants
DLA Phillips Fox for the 3^rd, 4^th and 5^th defendants

TABLE OF CONTENTS

The death of Stephen Crouch
What happened to Mr Crouch?
Breach of duty: the driver of the unidentified vehicle
Breach of duty: Mr Shamon
Causation: the vehicle defendants

The unidentified driver
Mr Shamon

The negligence claim against QBE (Mr Earea)

Duty and standard of care
Section 46 of the Civil Liability Act 2003
Breach of duty

The contract claim against QBE (Mr Earea)

The express term
The implied term

Causation and remoteness: Mr Earea

Breach of the express term
The implied term and the tortious duty

The position of Regent
The liability of Regent
Conclusion on liability
Contributory negligence

QBE: the express term claim

Law Reform Act 1995, s 10
Civil Liability Act2003, s 47

Claims other than the express term claim: s 47
Cases on the Law Reform Act 1995, s 10
Contributory negligence on the facts
A digression on apportionment

Cross claims for contribution
The dependants
Mr Crouch’s lost earnings

Cash earnings?
Projected increase in earnings

The combined pecuniary dependency

Mr Crouch's expenditure on himself
Future loss of support

Loss of services

Contingencies

Total
Distribution among dependants
Orders and costs

1. FRYBERG J:  Ms Elizabeth French sues the defendants for damages for causing the death of her de facto husband, Stephen Crouch.  She brings the action on her own behalf and on behalf of Mr Crouch's four children, Taylah; Jordan; Isaac and Naomi.  Mr Crouch died as a result of injuries received when he was hit by a motor vehicle or vehicles on the evening of 31 May 2003.  The defendants all deny liability and challenge the amount of Ms French's claim.

The death of Stephen Crouch

1. On Saturday, 31 May 2003, Mr Darren Hart organised a barbecue with his then girlfriend Ms Holly West at her house at Prince Street, Southport.  They invited a number of friends, and about 20 people turned up, including Ms French and Mr Crouch.  That couple arrived with their son Isaac (then a two-year-old) towards the end of the afternoon.  Mr Crouch brought a bottle of rum.  By about 8:00 pm he was merry and jovial.  Feeling tired, Ms French, who was heavily pregnant with Naomi, decided to go home with Isaac.  By arrangement with Mr Crouch, she took their vehicle, leaving him to catch a taxi.  That was the last time she saw him alive.  She was at that time carrying his wallet for him, and she forgot to return it before she left.  Consequently, he had no money or identification papers on his person.

The taxi

1. Mr Crouch continued to drink after Ms French left and by about 9:30 pm he had become drunk.  He had consumed most if not all of the bottle of rum which he had brought.  He tripped over a lighted brazier.  He was “making an idiot of himself”.  His speech was slurred, he was unsteady on his feet and his walk was swaying.  Mr Hart decided it would be best if Mr Crouch went home.  He rang Regent, the second defendant, and ordered a cab via that company's automated booking service.  In cross-examination Mr Hart opined that Mr Crouch was so affected by alcohol that he had neither the judgment to conclude that he ought to get himself home nor the physical and mental faculties intact to make arrangements for a cab to come and collect him.  He was not fit to get himself home even if dropped only half a mile from his home; it would not have been safe to leave him to find his own way home.  That was obvious from his condition, at least to Mr Hart who knew him well.

1. In due course the taxi arrived.  Its driver was Mr Stephen Earea.  Mr Hart and two other guests, Mr and Mrs Poole, assisted Mr Crouch from the barbecue in the backyard to the taxi, a distance of about 35 m.  Mr Poole was aware that Mr Crouch had finished his bottle of rum; Mrs Poole knew that he had also had two glasses of the bourbon which the Pooles had brought to the party.  It started to rain.  They persuaded Mr Crouch to enter the rear seat of the taxi.  Mr Poole opened the front passenger door, put his head inside the taxi and told Mr Earea an address in Yangoora Crescent, Ashmore.

1. Mr Earea, who died a few months before the trial began,[1] claimed in a written statement to police made eight months after the fatal night that Mr Poole told him to take the passenger to 27 Yangoora Crescent, but I believe the evidence of the Pooles that Mr Poole said 37 Yangoora Crescent.  I found them and Mr Hart persuasive witnesses who had reasonably good recollections of events of that evening.  I am satisfied that they gave their evidence accurately and honestly.  I reject the suggestion made on behalf of the taxi defendants[2] that Mr Poole was intoxicated.

   [1]The first defendant, QBE, was his insurer in respect of the present claim and consented to be substituted for him pursuant to s 51 of the Insurance Contracts Act1984 (Cth) in respect of the liability alleged against him.

   [2]By “taxi defendants” I mean QBE, which was the licensed insurer of the taxi and Regent, the second defendant.

1. Mr Earea was looking at Mr Poole when the latter told him the destination, but he did not respond verbally.  While Mr Poole spoke there were no distracting noises occurring.  It was a quiet street and there was no music in the cab.  Mr Crouch was probably not talking and Mr Poole could remember no other conversation.  Mr Earea did not repeat the address, nor did he write it down.  His cab was not equipped with a GPS device to record the address.  After Mr Poole gave the address, Mrs Poole leaned through the front passenger window and asked Mr Earea to get Mr Crouch home safely.  Again he did not say anything, but he was looking at her.

1. Mr Crouch was obviously very drunk. His speech was slurred.  Mr Poole described him as “gibbering”.  To Mr Hay, who saw him later in the evening, he smelt of alcohol.  He was urging the others to accompany him somewhere else for another drink.    Mr Hart pretended to agree to this proposal.  In furtherance of the pretence, Mr Hart got into the front seat of the cab for a short time, then got out, leaving the cab to drive off with Mr Crouch.

1. The taxi defendants submitted that “although Crouch was obviously under the influence of alcohol, and perhaps heavily so, he was not observably incapacitated”.  That submission draws a distinction without a difference.  Mr Crouch was incapacitated precisely because he was heavily under the influence of alcohol.  They submitted that he was “conversant”, but did not identify what he was conversant with.  He was certainly not conversational, at least not in any coherent sense.  He could hear what was being said to him but could not sensibly process it.  He was not “completely incapacitated” if by that expression the defendants meant completely unconscious; but it must have been obvious that there was every chance he would pass out.

1. Most of the direct evidence of what happened next is in Mr Earea's statement.  He said that Mr Crouch was intoxicated but able to get into the back of the taxi by himself.  He said that on arriving at 27 Yangoora Crescent about 10 or 12 minutes later, Mr Crouch was sitting up, but asleep.  Mr Earea was unable to waken him. He went and spoke to the occupant of number 27, but the lady denied knowing anything about the passenger.  Mr Earea told police that she was an old lady, but that was not correct.  Police subsequently discovered that she was Ms Kylie Quirk, who was babysitting for the occupants.  Mr Earea called his base asking for police assistance.  After 10 minutes, no police had arrived.  He then opened the back door of the cab and Mr Crouch

“fell out in what I describe as slow motion.  He fell onto the footpath and I lifted him up.  There wasn't any blood or anything like that, he was just very pissed and legless.”

For Mr Crouch to have fallen from a sitting position while so soundly asleep that Mr Earea could not waken him, he must have been leaning on the door and not wearing a seatbelt.  Mr Earea said he asked for payment.  Mr Crouch went through his pockets but was unable to find any money.  He had a mobile phone.  Mr Earea drove off with it.  He later claimed that Mr Crouch gave it to him and that he intended to come back, get the fare and return the mobile.  He said that when he left, Mr Crouch had fallen back down and was lying on the (wet) grass (it had been raining from time to time and continued to do so throughout the night).  After leaving Mr Crouch, Mr Earea, told the radio operator that he had got the passenger out and had been paid.  He was reprimanded for leaving the scene after having the police called and was required to drive to the Southport police station where he handed in the phone.

The credibility of Mr Earea's statement

1. I find that although Mr Crouch was intoxicated when he entered the taxi, he entered it without physical assistance.  I also accept that the time taken for the journey was about 10 or 12 minutes and that on arrival at 27 Yangoora Crescent Mr Crouch was asleep.  That is consistent with Mr Earea’s behaviour: he entered the premises and spoke to the occupant about his passenger.  I assume that the fact that he called his base asking for police assistance was corroborated, for it was not challenged.  There is no reason to doubt the description of what happened when Mr Earea opened the door of the taxi: that is consistent with the amount of alcohol Mr Crouch had drunk and with his subsequent blood alcohol reading.  I am not satisfied that Mr Crouch went through his pockets himself, nor that he gave his mobile phone to Mr Earea, either as security for or payment of the fare.[3]  Given his condition it seems unlikely that he could have carried out an effective search of his pockets; and a conscious decision to provide the phone as security also seems improbable, as Mr Earea would have had no way of getting back in touch with his drunken passenger.  Acceptance of the phone as security is also inconsistent with Mr Earea’s statement to the radio operator that he had been paid.  That statement, coupled with his decision not to wait for the police leads me to infer that he simply took the phone as compensation for his lost fare.

   [3]Under Regent's bylaws, Mr Earea was prohibited from retaining property in lieu of a fare: bylaw 12.19.

Subsequent events

1. At some time after Mr Earea left, Mr Crouch recovered sufficiently to become mobile.  What happened thereafter is largely a matter of inference.  He did not go home.  At about 11:00 pm Mr Douglas Hay returned to his home in Mualla Drive, Ashmore.  He encountered a drunk lying across his driveway.  He described this person as “unaware of what was going on around him and unaware of where he was.  He seemed to be – he was unconscious for want of a better word.”  At first he and his son were unable to get a response from the man.  He did not identify the man but described him as “not an old man”, wearing jeans and “nice looking shoes”.  Mr Crouch was wearing jeans that evening and liked to dress well when he was not working.  I infer that it was he whom Mr Hay saw.

1. The distance from 27 Yangoora Crescent to Mr Hay’s house was about a kilometre by the shortest pedestrian route (via Tumbarumba Avenue), and that is probably the route which Mr Crouch took.  It took him away from his home, not past it. It is convenient at this point to refer to a map of the area.[4]  Currumburra Road is a four-lane divided sub-arterial road which runs between Labrador and Carrara.  To get to Mualla Drive, Mr Crouch had to cross it.  To get home he had to re-cross it.  The evidence did not disclose whether the Southport Football Club in Mualla Drive had a liquor licence, nor its opening hours if it did.

Key (approximate):

1. 37 Yangoora Crescent
2. 27 Yangoora Crescent
3. Hay residence

1. Location of body

   [4]Tumbarumba Avenue on the map is the unnamed street running from Yangoora Crescent to Currumburra Road.

1. Mr Hay was concerned by his failure to get a response.  He went inside and rang the police.  Then he went back to the drunk who by now was making grunting and groaning noises.  “Eventually”, said Mr Hay,

“he sat up on his own on his elbow and then sat up on his bum and we spoke to him.  He looked dazed and looked around.  When he eventually got to his feet we asked him, ‘Are you all right, mate?’

Did he say anything?-- He looked at us and after a while he said, ‘Yes’ and then I - I then asked him, ‘Do you know where you are?’ and he said, ‘Yes’.  And then at that point he started staggering off.

What - in which direction did he stagger off?-- He staggered south along Mualla Drive to Yarradup Street where I had just arrived from - come from - and the very steep hill coming out of Mualla Drive into Yarradup Street and in that area there he staggered three or four times all over the place and then he went around the corner.  It probably took him, I don't know, three or four minutes to travel that 50 metres.

You watched him as he went?-- Yeah, he went around the corner, he disappeared.  The people on the corner have a fence and once he went past that fence we didn't see him anymore.”

The corner to which Mr Hay referred was that of Mualla Drive and Yarradup Street.

1. Precisely what happened to Mr Crouch after that corner will never be known. What is known is that by just after 11:45 pm at the latest, he (or his body) was lying on the carriageway of Currumburra Road.

1. At that time, Ms Caroline Barber was driving in a generally northerly direction on Currumburra Road with her husband and parents, Mr and Mrs McBride, as passengers. In the area relevant to this case the two carriageways of that road were separated from each other by a wide and sloping median strip.  The speed limit was 60 km/h.  As can be seen from the map, the road curves to the left just after its intersection with Yangoora Crescent as one proceeds in a northerly direction.  At the intersection it reaches the crest of a rise.  It was lit by a system of powerful street lights which were closer together than normal at the curve.  The geometry of the road and some of the
   lighting can be seen in the following photograph, taken from that intersection, looking roughly north.

1. Ms Barber was interviewed by a police officer later that night and signed the notes made by the officer in her notebook.  She also made a statement to police some four months after the incident and gave evidence at the trial.  In the vicinity of Yangoora Crescent the road was wet and as Ms Barber drove, there was a drizzle of light rain.  There were no cars in front of or close behind hers.  She was driving in the left-hand lane.  Just past the intersection with Yangoora Crescent she went over the crest and saw what she took to be a man asleep on the road.  She became aware of the man when she was several metres away from him.  His body was parallel to the road with the head pointing north.  As she drove past him she said, “There's someone asleep on the road.”  Her father suggested that they should go back.  She continued to drive north to Wallaroo Way and executed a U-turn at the traffic lights at that intersection.  She drove south along Currumburra Road to a point which she estimated to be opposite where she had seen the man.  There she stopped and remained in the car with her mother whilst her father and her husband got out and walked across the median strip.

1. Mr Tino Fenech was also driving north on Currumburra Road that evening.  As he approached the intersection with Yangoora Crescent, Mr Fenech was driving in the right-hand lane.  It had started to rain again, although not particularly heavily.  When he was about at the intersection he saw what he thought was a piece of bark ahead and changed from the right lane into the left.  When he was about 10 m from the object he realised it was a body.  As he went past it he saw there was blood over the side of the face lying on the bitumen.  The arms were spread wide with the legs together, forming a crucifix.  Mr Fenech pulled to the left of the carriageway and stopped about 20 m past the body.  This happened while Ms Barber was driving to Wallaroo Way and back.

1. Some distance behind Mr Fenech, Mr Brandt Shamon[5], the third defendant, aged about 19, was driving his Toyota Camry sedan on Currumburra Road, in the same direction.  He was in the right-hand lane.  He was familiar with the road.  He was travelling at approximately 60 km/h, although he thought the speed limit was 70 km/h.  He testified that the rain had eased and his windscreen wipers were working more slowly than previously, but when interviewed by police on the night of 31 May he said that at the time of the accident it had just stopped raining.  His headlights were on low beam, but the left headlight was not working.  It had been damaged in a minor accident several weeks previously.  Mr Shamon said in evidence that although he had inspected the damage carefully, he did not know the light was not working.  He saw Mr Fenech's car in front of him, although not until after it had changed lanes.  He saw it pull off to the left of the carriageway and felt a thud and his car bumped.  There was no dragging sensation.  He thought that happened at the same instant that Mr Fenech's car pulled to the left, but Mr Fenech told police that he heard the thud just as he was about to come to a stop.  Mr Shamon thought he had run over a tree branch.  He too pulled off to the left of the road and stopped some distance (he was unable to say how far) in front of Mr Fenech's car.  He saw the body after he alighted.

   [5]By the time of trial he had changed his name to Shannon.

1. Mr Fenech ran to the body and checked for a pulse.  There was a pulse and the chest was rising and lowering.  Mr McBride and Mr Barber arrived on the scene, having crossed the slippery grass on the sloping median strip.  At Mr Fenech's suggestion, Mr Shamon reversed his car and positioned it to block the approach to the body in the right-hand lane, with the hazard lights flashing.  He and Mr McBride tried to warn approaching traffic until the arrival of emergency services.  They were too late to save Mr Crouch; he died at the scene.

1. The accident scene was examined by Senior Constable Anderson, an officer with 12 years’ experience in the accident investigation squad.  His assistant made a sketch map depicting his findings.  A copy is set out below.  It depicts the position and orientation of Mr Crouch's body and Mr Shamon’s car.  It also shows the location of some scuff marks 6.2 m behind the car which had apparently come from Mr Crouch's shoes.  A further 3.1 m south were more scuff marks and in close proximity to them was some body tissue, hair and blood.[6]  The blood had flowed from its point of concentration (or “pool” as Constable Anderson described it) more than a metre downhill, becoming more diluted with distance.[7]  The marks, tissue and blood were spread over a distance of some 2.5 m.  The light poles and median strip were depicted on the sketch as was the 900 mm high retaining wall forming the foot of the median strip.  The lights created pools of quite bright light with good visibility on the road, between which were darker shadows caused by the overhanging trees.  The road was wet.  There was blood on the front left tyre of the car and some small blood spots on the lower parts of the left doors and near the left taillight.  Inside, there were several audiocassettes on the front passenger seat and at least one cassette in each front floor well.  The body was clad in a dark green T-shirt and denim jeans.  It had sustained a severe head injury and the left ear had almost been severed.  There were a lot of scratches on the body, but going in different directions, consistent with the body having been tumbled, pushed or dragged on the bitumen.  On the back were four substantial parallel scratches which in Constable Anderson’s opinion were more consistent with having been caused by parts of the undercarriage of a vehicle than by dragging on the road.  All of these features are depicted in a series of photographs taken by police on the night.

[6]Point E1 on the sketch.

[7]Exhibit 9.3.

1. Constable Anderson examined the grass on the embankment of the median strip adjacent to the most southerly indicator of an accident (the blood pool).  He saw no evidence to indicate that anyone had travelled through that area; there were no marks on the wet grass.  He conceded that it was nonetheless possible someone had walked across the area about an hour earlier.

1. A post-mortem examination of Mr Crouch's body was carried out.  Tests revealed that his blood alcohol content at the time of death was 0.235 mg of alcohol per 100 ml of blood.

The street lights

1. It is necessary to say a little more about the street lighting.  Mr Isdale, an Energex employee described it in some detail and Constable Anderson also referred to it.  The lighting was provided by a system of poles in the median strip.  Two booms projected from each pole to the northbound and southbound carriageways respectively and a light or luminaire was attached to the end of each boom.  Each luminaire contained a 250 W bulb.  Two of the poles were of particular relevance, numbers 134622 and 134623.  The police sketch shows them 40 m apart, but Mr Isdale's evidence was that they were in fact 32.5 m apart.  On either figure they were much closer together than the normal 75 m, because of the curve.  The lights were designed not only to illuminate directly, but also to cause reflection from the surface of the road.  Reflection assisted visibility by creating silhouettes, a phenomenon particularly relevant when the road was wet and therefore acting as a mirror.  A number of trees on the median strip created darker, shadowed sections on the road.

1. In addition to the police photographs taken on the night, the plaintiff tendered a number of photographs of the scene taken by a commercial photographer shortly before the trial.[8]  It was sought to rely on these as depicting the level of lighting which would have existed on the night, except for the fact that when the photographs were taken it was not raining and the road was not wet.  I reject them as evidence of that fact.  I do so on the basis of the evidence of several witnesses who thought them not so accurate and on the basis of my own scrutiny of them.  However they are useful for some other purposes.  Exhibit 8.0519 shows a punching bag on the road at approximately the same position as the point marked E1.  It demonstrates that that point was not in shadow.  Constable Anderson described the point as “a pool of bright light on the road”.[9]

   [8]Exhibit 8.

   [9]See also ex 8.0530.

What happened to Mr Crouch?

1. On the night he died Mr Crouch was extremely drunk.  He had consumed a whole bottle of rum and two glasses of bourbon.  When he entered the taxi he was very unsteady on his feet and “gibbering”.  His condition deteriorated on the drive to Yangoora Crescent.  When Mr Earea opened the door of the taxi he was asleep.  He fell out and lay on the wet ground.  He was still there when Mr Earea left.  When first seen by Mr Hay around 11:00 pm he was lying in a driveway despite the fact that it had been raining, at times heavily; and when roused he was unaware of his surroundings.  He staggered off toward Currumburra Road.  At the time of his death his blood alcohol reading was 0.235 mg/mL.

1. It is not possible to determine precisely the route which Mr Crouch followed from Mualla Drive to the scene of his death.  Most likely he entered Currumburra Road at its intersection with Yarradup Street.  At some point he must have crossed at least the southbound carriageway and the median strip, but it is not possible to say where that occurred.  Constable Anderson found no evidence of anyone crossing the median strip near the point marked E1, but that is inconclusive: he did not find any such evidence near the final resting place of the body, notwithstanding the passage of Messrs McBride and Barber.  Nonetheless I think it is unlikely that Mr Crouch crossed at this point.  To do so would have involved walking a significantly longer distance than would be walked by crossing earlier and walking on the inside of the curve.  It would also involve traversing a 900 mm high retaining wall, which would be unnecessary if one crossed further north.  I do not suggest he thought it out that way.  It is simply that if one looks at the median strip to the north of the retaining wall in ex 8.0519 the natural crossing point would be in the unwalled section or somewhere further north, beyond the photograph.

The first injuries

1. The plaintiff's case is that before he was run over by Mr Shamon’s Camry, Mr Crouch was hit by an unidentified vehicle near the point marked E1.  That point was 19.8 m from where Mr Crouch was lying when he was hit by the Camry; that is established by the police evidence in conjunction with that of Mr Shamon and Mr Fenech.  The Camry did not drag what it hit, according to Mr Shamon.  Senior Constable Anderson referred to the scuff marks from Mr Crouch's shoes on the road and the nature of his wounds to support the inference that before Mr Shamon arrived on the scene, Mr Crouch was dragged that 19.8 m by another vehicle. I find that inference inescapable.  Although the Nominal Defendant did not formally admit that Mr Crouch was struck by another vehicle, counsel conceded in address that this followed from Senior Constable Anderson’s evidence.

1. Mr Crouch died from head injuries.[10]  Were any such injuries caused by that other vehicle?  I am satisfied that some such injuries had been sustained before Mr Crouch was hit by Mr Shamon's Camry: Mr Fenech saw blood on Mr Crouch’s face prior to the latter impact.  Counsel for the vehicle defendants[11] submitted that there was no evidence that Mr Crouch suffered any head injuries when his body was struck by any vehicle driven by an unidentified driver or Mr Shamon.  He submitted that it was at least equally likely that fatal injuries had been sustained by a drunken fall onto the bitumen before any relevant vehicle came on the scene.

   [10]Exhibit 12.

   [11]By vehicle defendants I refer to the third defendant (Mr Shamon), the fourth defendant (RACQ Insurance Limited, his licensed insurer) and the fifth defendant (the Nominal Defendant).  By the time of the trial those parties had resolved any differences among them and were represented by the same lawyers.

1. Mr Crouch must have suffered some head injuries near the point E1 on the sketch.  The presence of human tissue, hair and a concentration of blood support that conclusion.  That presence suggests a severe impact (the experienced Constable Anderson found the presence of hair unusual), and possibly a crushing one, between the head and the road.  The human debris was sufficiently adherent not to be washed away on the wet road by the light rain which fell subsequently, although the blood was diluted and spread by a downhill flow over more than a metre.[12]  Mr Crouch had already fallen at least once (from the taxi) and possibly three times (also on the footpath at Yangoora Crescent and in Mr Hay’s driveway), and had suffered no visible injury. In my judgment the head injuries sustained near the point E1 were caused when Mr Crouch was hit by the unidentified vehicle, not by any fall on the carriageway of Currumburra Road.

   [12]Exhibit 9.3.

1. I am unable to make a finding about whether Mr Crouch was standing, stooping or lying on the road at the time he was hit by that vehicle.  The vehicle defendants submitted that he was unlikely to have been standing or even upright.  They pointed to the absence of any evidence of lower limb, hip or similar injuries which one might expect in such an accident; the fact that his shoes were still on Mr Crouch’s feet after the impact; and the absence of any vehicle debris suggestive of a front on collision.  For the reasons which follow, these arguments are not persuasive.  The post-mortem examination was carried out by a Dr Levy.  He was not called and no report by him was tendered.  The only evidence of the examination is a post-mortem examination certificate which deals only with the cause of death, not with any other injuries.  I was told that Dr Levy was overseas and uncontactable and there is no suggestion that he wrote a full report of his examination.  I am not prepared to draw any inference from the absence of evidence relating to other injuries.  Nor do I think the fact that the shoes were still on supports such an inference.  They remained on notwithstanding impact with the road which scuffed them; I infer they were securely done up.  Constable Anderson gave evidence that he had seen some accidents where pedestrians lost their shoes on impact and others where they were thrown off in the flailing of the body.  It appears unlikely that there was any flailing of Mr Crouch's body; if he was standing, he was immediately knocked to the ground and dragged. I do not find the presence of shoes on the body persuasive on this point.  As to the vehicle debris, its presence depends entirely on the nature and size of the vehicle which hit Mr Crouch.  Without knowing anything of that vehicle it is impossible to say whether one would expect debris or not.

1. Nevertheless it is entirely possible that Mr Crouch was stooping or lying on the road when he was hit.  As noted above, he had fallen or lain down two or three times a little earlier in the evening.  He could have done so again.  If he were lying on the road a crush injury is more likely than if he were standing; but this is too speculative a foundation for a conclusion on the point.  Constable Anderson favoured the inference that Mr Crouch was lying on the road for some time in order for the pool of blood, as he called it, to have formed.  He thought the amount of blood indicated that the head had been on the bitumen for a period of time.  I do not find that reasoning persuasive.  It is notorious that a small amount of blood spreads over a large surface area.  The blood seen by Constable Anderson had not coagulated; it was still wet.  However Constable Anderson did not know that there had been light rain between the time of the accident and when he examined the scene.  It is apparent that this had caused the blood to flow across the road.  It probably turned the blood on the road into a mixture of blood and water.  In my judgment the inference favoured by Constable Anderson cannot safely be drawn.  I reach that conclusion notwithstanding the plaintiff's willingness to accept Constable Anderson’s inference.  

1. In any event, the liability of the Nominal Defendant must be assessed on the basis that Mr Crouch might have been lying on the carriageway.  For that reason the conclusion is of little consequence.

The second injuries

1. Mr Shamon did not see Mr Crouch before he drove over him.  He did not apply his brakes and therefore, hit Mr Crouch at about 60 km/h.  According to Ms Barber, Mr Crouch was lying approximately parallel to (the direction of) the road.  The impact probably reoriented the body.  It caused significant blood splatter to the left side of the Camry and a concentration of blood on the front left wheel.  The impact of the vehicle must have been very heavy and likely to cause severe injuries.  Constable Anderson observed a considerable amount of scratching and bruising to Mr Crouch’s chest, with differential striations, and these can be seen in ex 9.13.  They could be wheel marks, but I would not feel confident in drawing such a conclusion.  There is simply no evidence to enable a conclusion to be drawn as to what part or parts of the body were hit by the Camry.  In other words, I cannot on the evidence determine whether the Camry inflicted any head injuries on Mr Crouch; although having regard to the speed of the vehicle and to the blood splatter there is a significant possibility that it did so.  If it did inflict such injuries, it is more likely than not that they materially contributed to Mr Crouch's death.

Breach of duty: the driver of the unidentified vehicle

1. The law imposes a high, although not an impossible standard of care upon drivers:

“The standard in respect of the position adriver should be in so as to be able to take reasonable steps to react to events is itself a standard of reasonable skill and care; and although the standard of reasonable skill and care required of drivers is a high standard (because cars are so dangerous, and can so easily cause serious injuries), it is not a standard measured by success or perfection assessed with the wisdom of hindsight.”[13]

[13]Hawthorne v Hillcoat[2008] NSWCA 340 at [47].

Relevantly for present purposes:

“The law does impose on drivers of motor vehicles a high standardof care for other road users, including those present for the purposes of dealing with injured persons or animals, or even obstructions, on the roadway.”[14]

It matters not that the risk which eventuated was low:

“It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote.  But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”[15]

None of the vehicle defendants raised any question under ss 9 or 10 of the Civil Liability Act2003.

[14]Staderman v Dakin[2005] ACTSC 112 at [19].

[15]Manley v Alexander[2005] HCA 79; (2005) 80 ALJR 413 at p 415 [12].

1. Ms French pleaded the following particulars of breach of duty against the Nominal Defendant:

“15.1     Failing to keep any proper lookout;
  15.2     Failing to see Crouch on the roadway;

15.3Failing to stop, slow down or steer clear so as to avoid a collision with Crouch;

15.4Driving at a speed which was excessive in the circumstances.

15.5Having struck Crouch, failing to stop and render him assistance and prevent him from being struck by another vehicle.”

1. One cannot infer a breach of duty by the driver of the unidentified vehicle merely from the fact that the vehicle hit Mr Crouch.  The driver was presented with a difficult problem.  It was night-time; visibility was impaired by light rain; Mr Crouch was wearing dark clothing; the road surface was wet, doubtless with patches of variable reflectivity; and Mr Crouch may have been lying on the carriageway, motionless and not reasonably to be expected to be there. There is no evidence that the driver was driving too fast for the conditions.  On the other hand, even if Mr Crouch was not moving, he was lying in a pool of bright light.  In her written statement made some four months after the accident, Ms Barber described the visibility as good while also noting that it was drizzling at the time.  Mr Fenech saw him in time to take successful evasive action, and the point where he was lying when Mr Fenech saw him was no better, and quite possibly worse, illuminated than the point E1.  Had Mr Crouch been seen, the driver ought to have been able to avoid him, even at the last minute.

1. These features mean, in my judgment, that the unidentified driver breached his duty of care to Mr Crouch.  He failed to keep a proper lookout and to stop or steer clear so as to avoid a collision with Mr Crouch.

1. Ms French also submitted that the conduct of the unidentified driver in leaving the scene without stopping and helping was original evidence from which it could be inferred that he was conscious that his careless driving had caused his vehicle to collide with a pedestrian.  That proposition was supported by reference to Nominal Defendant (NSW) v Puglisi[16], applying Holloway v McFeeters[17].  She submitted that in the circumstances of the case I should draw that inference.  In response, the Nominal Defendant submitted that such an inference could not be drawn merely from the circumstance that a driver departed from the scene of an accident; there must also be evidence that the driver knew a pedestrian had been struck.[18]  It submitted that no such knowledge could be inferred in the present case.

   [16](1984) 58 ALJR 474.

   [17](1956) 94 CLR 470; [1956] HCA 25.

   [18]Guest v The Nominal Defendant[2006] NSWCA 77.

1. I accept the submission that the unidentified driver must have known that he had, or at least might have, hit a pedestrian for the inference to be drawn.  The inference is logically available only when the driver can be expected to have had a consciousness of guilt.  So much is apparent from the cases cited.  However in my judgment that driver probably did know or at least suspect that he had hit a pedestrian.  His vehicle not only impacted a substantial object on the road; it dragged or pushed that object nearly 20 m forward.  The driver must have been aware of the impact and the dragging and it is unlikely that he would not have investigated their cause.  Speculation about the possible presence of unusual heavy vehicles or tree trunks does not detract from that conclusion.

1. Those matters support the conclusion already reached of breach of duty by the unidentified driver.

1. Particular 15.5 is of a different order from the other particulars.  It does not relate to the driving of the unidentified driver but to his conduct after the impact.  It assumes that the driver had a duty to stop and render assistance if he knew or ought to have known that his vehicle had hit a pedestrian.  No such duty was pleaded, but the Nominal Defendant raised no objection on that count.  Because it relates to post-accident conduct, it cannot be causally related to injuries sustained as a result of the first accident.

1. Perhaps surprisingly, no case directly on point was cited to me.  I was however referred to Lawes v Nominal Defendant[19].  In that case an unidentified vehicle collided with and killed a horse, which the driver left lying on the road without any warning to approaching motorists.  The plaintiff was injured when his motorcycle collided with the horse.  The trial judge held that even if the unidentified driver was not negligent in relation to the collision with the horse, he owed a duty to other road users to exercise reasonable care to prevent the horse’s body from harming them.  That conclusion was not challenged on appeal.  Jerrard JA recorded the basis for the finding:

   [19][2008] 1 Qd R 369; [2007] QCA 367.

“The learned judge cited authority, including Ticehurst v Skeen (1986) 3 MVR 307, at 310-311; Fleming ‘The Law or Torts’, 9th Ed (1998) at pp 164-166; Clerk & Lindsell on Torts, 19th Ed (2006), 8-43, pp 411-412; Todd (Gen Ed), The Law of Torts in New Zealand, 2nd Ed (1997) p 213, and several decisions in the United States.”

After referring to the trial judge's findings of fact, he continued:

“[10] The appellant Nominal Defendant did not challenge the learned judge’s conclusion that the circumstances created a duty on the driver of the unidentified vehicle to exercise reasonable care to prevent the hazard posed by the dying or dead horse from harming other road users.  Counsel referred this Court to the remarks of Brennan J, as His Honour then was, in Sutherland Shire Council v Heyman [1985] HCA 41; (1984-1985) 157 CLR 424 at 479. In Pennington v Wolfe 262 F Supp 2d 1254 Lungstrum J wrote (at 1260) that:

‘The rule is extrapolated from the broader principle that an actor who creates a hazardous condition has a duty to use reasonable care to warn others of the condition or to correct it.’

Likewise in Ticehurst v Skeen, referred to by the learned judge, Wood J expressed the view that a duty existed to take reasonable steps to remove a hazard or give warning of its presence, where a motorist was connected with the creation of the hazard.”[20]

[20]Ibid at [7] and [10].

1. In my judgment the present case is a fortiori.  The unidentified driver created or at least gravely aggravated the hazard to which Mr Crouch was exposed.  He owed Mr Crouch a duty to exercise reasonable care to prevent further injury from oncoming vehicles.

1. I have already held that the driver of the unidentified vehicle knew that he had, or suspected that he might have, hit a pedestrian.  Even if that conclusion be incorrect, I am satisfied that the driver at least ought to have known that he might have hit a pedestrian.  If he did not know, he ought to have been alive to the possibility and investigated it.  Hitting a large object on the road feels quite different from hitting a pothole.  When a driver becomes aware of the risk that he may have hit a pedestrian it behoves him to investigate the situation. McHugh J once wrote, “Ordinarily, the common law does not impose a duty of care on a person to protect another from the risk of harmunless that person has created the risk.”[21]  The converse is also true.  The unidentified driver at least aggravated the risk; he ought to have done something to protect Mr Crouch from further injury and to obtain help.  He did not do so.  By those omissions he breached his duty of care.

   [21]Graham Barclay Oysters Pty Ltd v Ryan[2002] HCA 54; (2002) 211 CLR 540 at p 575-6 [81].

Breach of duty: Mr Shamon

1. The breaches of duty alleged against Mr Shamon were:

“17.1     Failing to keep any proper lookout;

17.1ADriving his vehicle when he knew, or ought to have known, the front passenger side headlight thereof was not illuminated, and thereby affording him diminished forward vision in the wet conditions he was driving in, per se and contrary to s 215(1)(a) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999, that headlight damaged in another motor vehicle accident that occurred on 22 April 2003;

17.2Failing to see Crouch on the roadway;

17.3Failing to stop, slow down or steer clear so as to avoid a collision with Crouch;

17.4Driving at a speed which was excessive in the circumstances.”

1. I did not find Mr Shamon a satisfactory witness.  Firstly, I thought in his evidence he was inclined to exaggerate or minimise in order to exculpate himself.  For example he described visibility at the relevant time as “Quite poor.  Very poor.”  I reject that evidence.  Earlier that evening Mr Shamon had decided to go driving for pleasure; he was not deterred by the conditions, which were worse at that time because the rain was heavier.  In his interview with police shortly after the accident, he said the rain had stopped.  The evidence of Senior Constable Anderson and Ms Barber's initial statement also suggest that “very poor” was an exaggeration.  Second, I am not satisfied that Mr Shamon had his mind fully on his driving.  He was enjoying the process of driving (he described himself as “relaxed”), probably listening to audiocassettes and paying no particular attention to events before his car hit Mr Crouch.  He claimed that his memory was that Mr Fenech's car was in the left lane and almost next to him (he was in the right lane) as they drove up the hill towards the accident scene.  In that respect his memory was wrong.  Moreover, shortly after the accident he told police that in Currumburra Road, before he got to the top of the hill, he saw no vehicles travelling ahead of him in the same direction.  Third, he evaded questions in cross-examination, although perhaps from an inability to focus his mind rather than from deceptive intent.

1. The left side headlight of Mr Shamon's Camry had been broken in a minor accident several weeks earlier.  Mr Shamon claimed that he did not know the headlight was not working.  He admitted that he had looked at it, he said reasonably carefully, and knew it had been damaged.  He said he didn't have much money at that time, so he didn't want to get it fixed quickly.  It suffered no additional damage when he ran over Mr Crouch – he looked at it after that accident.  The condition of the light at that time is apparent from ex 9.20 and ex 9.21.  At first Mr Shamon claimed in cross-examination to believe that after the first accident he “tested everything”; when pressed he admitted he could not recall whether he tested the headlight.  Mr Shamon regularly parked in undercover parking facing a wall or solid surface.  Over the several weeks between the light being damaged and the death of Mr Crouch he “had done a fair bit of night-time driving to friends’ places”, so he would have parked facing the wall with his lights on a number of times.  I do not believe that he was unaware of the condition of the headlight before the accident on 31 May.  I find that he knew it was not working.  His initial claim to believe that he had tested everything and found it safe was a self-serving evasion.

1. Mr Shamon did not see Mr Crouch.  It is unclear whether Mr Crouch was lying in shadow or not.  If he was in an area directly illuminated by the street lighting, Mr Shamon should have seen him for the same reasons that the driver of the unidentified vehicle should have seen him.  If he was in a shadowed area that task was more difficult.  His dark clothing and motionless body would have made it difficult to see him from any distance.  Nonetheless he was seen, albeit somewhat belatedly, by Ms Barber.  Mr Fenech also saw him, and in time to change lanes to avoid him, although he thought at first that Mr Crouch was a piece of bark.  The difference between them and Mr Shamon was that they had both headlights working and, it may be inferred, were concentrating on their driving.  In an area illuminated directly by street lighting the broken headlight of the Camry would probably have made little difference; that seems to follow from Mr Isdale’s evidence.  In an area of shadow the existence of two working headlights became important.  I infer that had Mr Shamon been concentrating on his driving, two functional headlights would have enabled him to see Mr Crouch in sufficient time to avoid him, by the same manoeuvre as that executed by Mr Fenech.  There was no traffic in the left-hand lane to prevent Mr Shamon from steering around Mr Crouch.  If he could not have done that then he was going too fast for the conditions.

1. For these reasons I am satisfied that Mr Shamon breached his duty of care to Mr Crouch.

Causation: the vehicle defendants

1. The plaintiff’s damage derives directly from the death of Mr Crouch.  That death was caused by head injuries.  I have already found that the impact of the unidentified vehicle caused some serious head injuries to Mr Crouch;[22] that the driver of the unidentified vehicle failed to remain at the scene to protect and assist Mr Crouch; that the impact of Mr Shamon's vehicle may have caused further head injuries to him, but has not been proved to have done so;[23] and that Mr Crouch died of head injuries.[24]  Some further findings are necessary.

·The vehicle defendants submitted that the evidence does not explain which collision caused the fatal injury.  There is a degree of truth in that submission.  The head injuries inflicted in the first collision were serious, but their precise nature and extent have not been established, nor has it been shown that they would have caused death in the absence of the second collision.  However their severity is such that I am satisfied that they made a material contribution to that death.

·I have no hesitation in finding that the failure of the driver of the unidentified vehicle to remain at the scene of the collision to protect Mr Crouch and obtain aid for him was a cause of (in the sense of being a material contributor to)[25] whatever injuries were inflicted in the second collision.  Had he positioned his vehicle as Mr Shamon subsequently positioned his Camry, he would, on the balance of probabilities, have averted further injury to Mr Crouch.

·The second collision doubtless caused severe injuries to Mr Crouch, but it has not been proved what they were, nor that those injuries included head injuries, nor that they would have killed Mr Crouch anyway, had he not died from head injuries.

·Finally, while Mr Crouch may have fallen on Currumburra Road, any injuries from such a fall would not have been serious, and certainly would not have been fatal.

[22]Paragraph [29].

[23]Paragraph [33].

[24]Paragraph [28].

[25]Compare Bonnington Castings Ltd v Wardlaw[1956] UKHL 1; [1956] AC 613 at p 621.

1. The starting point for a consideration of the issue of causation is s 11 of the Civil Liability Act2003:[26]

   [26]Adeels Palace Pty Ltd v Moubarak[2009] HCA 48; (2009) 239 CLR 420 at p 440 [44].

“11     General principles

(1)A decision that a breach of duty caused particular harm comprises the following elements—

(a)the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b)it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2)In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

…

(4)For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.”

1. “[I]t is necessary to observe that the first of the two elements identified in s 5D(1)[27] (factual causation) is determined by the ‘but for’ test: but for the negligent act or omission, would the harm have occurred?”[28]  In examining that element it is necessary to distinguish among the defendants; the question is whether individual defendants are to be found liable.[29]

   [27]In Queensland, s 11(1).

   [28]Adeels at p 440 [45].

   [29]Amaca Pty Ltd v Ellis[2010] HCA 5; (2010) 240 CLR 111 at p 130 [42].

The unidentified driver

1. I have already found that the unidentified driver materially contributed to Mr Crouch's death by means of the severe head injuries resulting from his breaches of duty while driving his vehicle.[30]  However, I have also found that it has not been proved that those injuries alone would have caused Mr Crouch’s death.  I have found that there is a significant possibility that further head injuries were caused by Mr Shamon's Camry, and that if any such injuries were inflicted, they would have materially contributed to Mr Crouch's death.  It is a possibility that the further injuries would have been enough to kill Mr Crouch.  If the matter rested there, it would be difficult to find that the unidentified driver’s driving breaches were a necessary condition for the occurrence of Mr Crouch’s death.  But the matter does not rest there.  The unidentified driver further breached his duty by failing to protect Mr Crouch.  Had he protected Mr Crouch the further injuries would not have happened.  In short, if the driver had breached no duty, Mr Crouch would not have died.  His breaches of duty were a necessary condition for the occurrence of the death.[31]

   [30]Paragraph [50].

   [31]No party submitted that if the unidentified driver had not collided with Mr Crouch, Mr Shamon would still have done so.

1. It is plainly appropriate for the scope of his liability to extend to the harm he caused.

1. I do not understand s 11(4) to require a trial judge to reinvent the wheel in every case. I find no obligation in that provision to reconsider by way of normative analysis whether or not and why responsibility for the harm inflicted in this motor vehicle accident should be imposed on that driver. In an ordinary case it suffices for the purpose of deciding the scope of liability to observe that liability should be imposed because the case law requires it.

1. I find that the breaches of duty of the driver of the unidentified vehicle caused Mr Crouch's death.

Mr Shamon

1. I have already found that no conclusion can be drawn as to what part or parts of the body were hit by Mr Shamon’s Camry; that it cannot be determined whether the Camry inflicted any head injuries on Mr Crouch; that having regard to the speed of the vehicle and to the blood splatter there is a significant possibility that it did so; and that if it did inflict such injuries, it is more likely than not that they materially contributed to Mr Crouch's death.[32]  It has not been proved that Mr Shamon's breaches of duty were a necessary condition for the occurrence of Mr Crouch's death.  The first element of a decision that those breaches caused that death has not been proved.

   [32]Paragraph.[50].

1. The second element has been proved.  It is plainly appropriate for the scope of Mr Shamon's liability to extend to Mr Crouch's death.

1. Ms French submitted that this was an exceptional case which fell under s 11(2). The Act gives no indication of what constitutes an exceptional case, save that it implies by the reference to “established principles” that such cases are recognised by common law. The High Court has written:

“54.Section [11](2) makes provision for what it describes as ‘an exceptional case’.  But the Act does not expressly give content to the phrase ‘an exceptional case’.  All that is plain is that it is a case where negligence cannot be established as a necessary condition of the harm; the ‘but for’ test of causation is not met.  In such a case the court is commanded ‘to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party’.  But beyond the statement that this is to be done ‘in accordance with established principles’, the provision offers no further guidance about how the task is to be performed.  Whether, or when, s [11](2) is engaged must depend, then, upon whether and to what extent ‘established principles’ countenance departure from the ‘but for’ test of causation.

55.At once it must be recognised that the legal concept of causation differs from philosophical and scientific notions of causation. It must also be recognised that before the Civil Liability Act and equivalent provisions were enacted, it had been recognised (Bennett v Minister of Community Welfare[33]; Chappel v Hart[34]) that the ‘but for’ test was not always a sufficient test of causation. But as s [11](1) shows, the ‘but for’ test is now to be (and has hitherto been seen to be) a necessary test of causation in all but the undefined group of exceptional cases contemplated by s [11](2).

56.… .

57.It may be that s [11](2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd[35] where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments.  Whether or how s [11](2) would be engaged in such a case need not be decided now.”[36]

[33][1992] HCA 27; (1992) 176 CLR 408 at 413 [9].

[34][1998] HCA 55; (1998) 195 CLR 232 at 257 [66] - [67].

[35][2002] UKHL 22; [2003] 1 AC 32.

[36]Adeels at p 443 [54] – [57] (some citations omitted).

1. Ms French submitted that s 11(1) was satisfied in respect of both the unidentified driver and Mr Shamon. In the alternative, she submitted that in the event that sub-s (1) was not satisfied in respect of both drivers, this was a case covered by s 11(2). She submitted: “To the extent that it may be difficult to know what further injuries were caused in the second collision, the events occurred close together in circumstances where derivation is impossible but both the unidentified driver and Mr Shamon were at fault.” She did not expressly deal with the position which would arise on the findings which I have made.

1. The vehicle defendants submitted that the reference to Fairchild was a red herring, apparently on the basis that the case applied only to employment-related injuries.  (They further submitted that it was to be distinguished because in the present case the plaintiff had failed to prove that either driver had breached his duty, but that submission fails in the light of my earlier findings.)

1. The question in Fairchild was formulated by Lord Bingham this way:

“If

(1) C was employed at different times and for differing periods by both A and B, and
(2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and
(3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and
(4) C is found to be suffering from a mesothelioma, and
(5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but
(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,

is C entitled to recover damages against either A or B or against both A and B?”[37]

The House of Lords held that in the circumstances, each defendant was liable despite the fact that the one whose fault caused the damage could not be identified due to the limitations of scientific knowledge.

[37][2002] UKHL 22; [2003] 1 AC 32 at p 40 [2].

1. It is unnecessary to analyse the various judgments in Fairchild.  The case has no application here not because it is restricted to mesothelioma cases or more generally to employment-related injuries, but because this is not a case where there is no defendant who satisfies the “but for” test.[38]  Fairchild imposed liability on defendants who, on the facts, could not be shown to have caused the plaintiff's disease, where all were in breach of their duty and the plaintiff was unable, by reason of the limitations of science, to prove which breach of duty was causally potent.  Any resulting unfairness to defendants was outweighed by the unfairness to the plaintiff should he recover against none of them.

   [38]It would be otherwise if my finding in para [53] were wrong, but I do not think I am obliged to examine the law applicable in that contingency.

1. It is also unnecessary for me to determine what sort of case is exceptional within the meaning of s 11(2).

1. I find that the plaintiff has not proved that Mr Shamon's breaches of duty caused Mr Crouch's death. He and RACQ, his insurer, are therefore entitled to judgment against Ms French.

The negligence claim against QBE (Mr Earea)

1. Ms French claimed against Mr Earea in tort (negligence) and in contract.

Duty and standard of care

1. Ms French pleaded that the taxi defendants:

“owed to Crouch a duty to exercise reasonable care in and about, and incidental to the conveyance of Crouch as a taxi passenger in respect of any reasonably foreseeable, in the sense of not far fetched or fanciful, or alternatively not insignificant risk of injury to Crouch arising out of the conveyance”.

They denied that allegation, but by the end of the trial conceded the existence of a duty to exercise reasonable care.  Presumably they meant reasonable care for the safety of Mr Crouch.  It has long been the law that carriers owe their passengers such a duty.[39] As the parties framed their submissions, issue was joined on the standard of care owed to Mr Crouch, or as the defendants sometimes put it, the content of the duty. The defendants also relied on s 46 of the Civil Liability Act2003; that provision may be put to one side for the moment.

[39]Crofts v Waterhouse (1825) 3 Bing 319; [1825] ER 809.

1. In Caltex Refineries (Qld) Pty Ltd v Stavar, Allsop P listed a number of “salient features” by reference to which the facts bearing on the relationship between the plaintiff and a putative tortfeasor might be analysed in order to identify the possible existence of a novel duty of care.  The first use of the quoted words in this context in the High Court seems to have been in the judgment of Stephen J in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad”[40].  They were adopted by Gummow J in Perre v Apand[41] and have been used in a number of cases since then.[42]  These features are equally applicable in assessing the content of the duty or standard of care.  Allsop P wrote:

   [40][1976] HCA 65; (1976) 136 CLR 529 at p 576-577.

   [41][1999] HCA 36; (1999) 198 CLR 180 at p 253.

   [42]See the cases cited by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar[2009] NSWCA 258; (2009) 75 NSWLR 649 at p 677.

“103These salient features include:

(a)   the foreseeability of harm;

(b)   the nature of the harm alleged;

(c)   the degree and nature of control able to be exercised by the defendant to avoid harm;

(d)  the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e)   the degree of reliance by the plaintiff upon the defendant;

(f)   any assumption of responsibility by the defendant;

(g)   the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h)   the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i)    the nature of the activity undertaken by the defendant;

(j)    the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;

(k)   knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l)    any potential indeterminacy of liability;

(m)  the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n)   the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;

(o)   the existence of conflicting duties arising from other principles of law or statute;

(p)   consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q)   the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.”[43]

[43]Ibid at p 676 [103]. Plus ça change, plus c’est la même chose: cf Maloney v Commissioner for Railways (NSW)(1978) 52 ALJR 292 at pp 292-3 per Barwick CJ.

1. To the extent that they are relevant in the present case, those factors are reflected in the following discussion.  I shall not deal with them seriatim; the passage quoted is not an act of Parliament and should not be applied as if it were.  His Honour identified the proper use of the list in the paragraph which followed it:

“104There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features.  Nor should the list be seen as exhaustive.  Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.”[44]

[44]Ibid at p 676.

1. The social utility of taxis for the conveyance of the inebriated can hardly be denied. The taxi defendants did not attempt to do so; indeed they relied upon it:

“MR HOLYOAK: … Those of us that have had too much to drink rely on taxis and a taxi driver, unless you're going to cause a nuisance to the taxi driver or other passengers, your state of intoxication is not a ground for refusal, and we know that from personal experience, and that's an important statutory context in which Mr Earea found himself, the deceased driver of the taxi.

HIS HONOUR:  An important social one too.  It keeps drunks off the road.

MR HOLYOAK:  Quite so, your Honour, and I will - that's a very important matter when one comes to talk about the nature of the duty that's owed here and where it stops, and you'll see in my written submissions I make a lot of submission about the social utility and - versus autonomy, which is important about whether or not a duty is owed in these circumstances.”

As counsel submitted, the relevant Act and regulation reflected that value.  Mr Earea could not lawfully have refused the hiring merely on the ground of intoxication of the passenger.[45]  He could however lawfully have directed Mr Crouch not to enter the taxi if he was likely to cause him nuisance or annoyance.[46]

[45]Transport Operations (Passenger Transport) Regulation 1994, s 26.

[46]Transport Operations (Passenger Transport) Act1994, s 143AG.

1. The standard of care which Mr Earea was required to exercise is a matter which depends upon issues of fact.  Importantly, at all material times he must have been aware that Mr Crouch was intoxicated.  Mr Crouch did not nominate the address to which he was to be taken; Mr Poole did that.  Mr Crouch was in no condition to articulate his address; later, when the taxi arrived at Yangoora Crescent he did not, and I infer could not do so.  Indeed, Mr Crouch's wish to party on elsewhere was overridden by his friends.  Knowing this, Mr Earea accepted the instruction to take Mr Crouch to Yangoora Crescent.  He did not demur to Mrs Poole's injunction to take Mr Crouch home safely.  Mr Crouch was vulnerable if his taxi driver did not take reasonable care for his safety and was reliant upon Mr Earea to do this.  The latter and only he was in control of the situation at all material times.  He did not suggest that Mr Crouch's condition was likely to make him a nuisance.

1. It follows that in my judgment Mr Earea took some responsibility for Mr Crouch's safety. That was not inconsistent with his duty under Regent's bylaws. They required that all members of the public be treated with all due care, courtesy and consideration by him,[47] and that he comply with all reasonable requests by passengers.[48]  Mrs Poole's request that Mr Earea get Mr Crouch home safely answers that description. Nor was it inconsistent with Regent's Code of Conduct for Drivers, which obliged Mr Earea to be courteous and helpful to Mr Crouch and not to “unload” him “in an uncaring manner”.[49]

   [47]Bylaw 12.3.

   [48]Bylaw 12.12.

   [49]Exhibit 16, p 13.

1. It is necessary to say a little more about vulnerability.  The taxi defendants submitted that reliance and an assumption of responsibility are indicators of a plaintiff's vulnerability to harm.  They submitted that in many cases there was no sound reason for imposing a duty to protect a plaintiff where it was reasonably open to the plaintiff to take steps to protect himself.  If a plaintiff could have taken steps to protect himself from the defendant's conduct and was not induced by defendant into [semble: not] taking those steps, there was no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk.  In this instance the harm did not arise from any reliance or assumption of responsibility; it arose from Mr Crouch’s intoxication.  His death was his own fault – he should not have got drunk.  He was not relevantly vulnerable.

1. There is a tension between that submission and the taxi defendants’ earlier submission that the expression of a duty of care “should be left in general terms to take reasonable care”.  In that context the defendants pointed out how the High Court has emphasised that questions of duty and breach of duty should not be conflated lest the merger result in the vice of retrospective over-specificity of a breach.[50]  That submission is in my judgment correct.  It is a mistake to define duty in terms of specific breaches alleged to have occurred. In my judgment it is equally a mistake to define duty to exclude cases where specific causal (in the “but for” sense) events not alleged to constitute a breach have occurred.  That is particularly so where such an event is not the product of environmental factors or the conduct of third parties, but the result of the plaintiff's own actions.  Such an approach to the definition of duty would lead to the reintroduction by the back door of contributory negligence as a complete defence.

   [50]Cal (No 14) Pty Ltd v Motor Accident Insurance Board[2009] HCA 47; (2009) 239 CLR 390 at p 418 [68] per Hayne J.

1. A person who is inebriated is vulnerable, regardless of whether his condition is self-induced.  His vulnerability remains a factor to be taken into account in assessing the existence of a duty and the standard of care owed to him.  The submission on vulnerability conflates causation and duty.  Exclusory over-specification is to be avoided just as much as inclusory over-specification.

1. Section 9(2) of the Civil Liability Act2003 deals with general principles relating to the standard of care; it refers to some of Allsop P's salient features:

“9     General principles

(1)…

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

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

(b)     the likely seriousness of the harm;

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

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

1. I do not think that, viewed at the time Mr Earea drove off, it was more likely than not that Mr Crouch would be hit by two vehicles on Currumburra Drive. However notwithstanding its use of the definite article to qualify “harm”, s 9(2)(a) does not refer to the precise mechanism of harm which in fact arose. It suffices if harm of the same general sort would occur. There was a reasonable possibility that, left beside the road in his inebriated condition, Mr Crouch would wake up, wander onto the road and be hit by a vehicle.

1. Plainly, the likely seriousness of the possible harm was extreme.

1. It would not have been burdensome for Mr Earea to have verified and recorded his destination, nor (on the evidence in this case) unduly burdensome to have remained with Mr Crouch in his vehicle until the police arrived.  There was no reason to suppose that they would not respond promptly.  The alternatives open to Mr Earea, taking Mr Crouch to a police station or back to Prince Street, were also not unduly burdensome.

1. There was no social utility in omitting to verify and record the address, nor in putting Mr Crouch on the footpath and leaving him there.  Freeing up the taxi for other passengers might have been important at a busy time, but there was no evidence to suggest a shortage of taxis on this particular night.

1. On this aspect of the case, the first submission on behalf of the taxi defendants was:

“The autonomous decision of an adult to be in such a state of intoxication does not impose or extend a duty of care. Consequences which follow from that decision to be intoxicated are the personal responsibility of the intoxicated person.”

It is not easy to see how that submission has any application in the present case.  There is no evidence that Mr Crouch deliberately set out to get drunk or otherwise made an “autonomous decision” to that effect.  Moreover, the notion that a person who intends to get drunk and who makes consequential arrangements with another for his subsequent well-being and safety cannot hold that other responsible for negligently failing to carry out the arrangement smacks of Calvinism.  The common law has had some odd doctrines throughout its history, but it has never made outlaws of alcoholics.

1. The first case cited in support of the submission was M’Cormick v Caledonian Railway Co[51].  I do not find it persuasive.  It was a contract case; it is more than a century old; and it long predates Donoghue v Stevenson.

   [51](1904) 6 F 362, Ct of Sess.

1. Second, the taxi defendants relied on State Rail Authority of New South Wales v Schadel[52].  In that case the plaintiff alighted from a train at Central Railway Station, Sydney, in an extremely intoxicated condition.  He and his companion made their way toward the platform exit. The authority’s employee on the platform observed them walk, obviously intoxicated, up to 60 m towards two exits, keeping a relatively straight line side-by-side as if they were conversing, about 2 m or 3 m from the train.  He signalled that it was clear for the train to depart when they were fairly close to or at the first exit.  The train moved off.  It took about 25 seconds to clear the platform.  At some point during that time the plaintiff unexpectedly moved to the end and the edge of the platform, possibly to urinate, and came in contact with the last carriage of the train.  The issue in the case was whether the employee breached his duty of care, not whether there was a duty of care.  It was held that there was no breach of duty.  The Court of Appeal wrote:

“57This is a conclusion on the facts of the present case.  It does not mean that a railway authority has unbridled licence to send its trains on their way.  A passenger still getting off or getting on the train, a child skylarking near the edge of the platform apparently heedless of the danger of a moving train, or an intoxicated person on the platform obviously unable to control himself and so in a position of danger, all these can be expected to preclude immediately sending the train on its way.”[53]

The case does not support the taxi defendants’ submission and the passage quoted demonstrates the inapplicability of the Scottish decision.

[52][2001] NSWCA 394.

[53]Ibid.

1. The third case relied on was Portelli v Tabriska Pty Ltd[54].  The decision in that case was one on its facts; it was held that the trial judge's conclusion that there was no evidence of an apparent danger to the plaintiff was clearly correct.  There are dicta in the case regarding the duty of a publican to protect intoxicated patrons from wrongful acts of third parties after they leave the hotel, but they do not in my judgment affect the taxi defendants.

   [54][2009] NSWCA 17.

1. In calculating the value of the lost financial support Ms French relied principally on a report by Mr Michael Lee, a forensic accountant.  Mr Lee did calculations of lost earnings for two factual scenarios.  The first was based on the deceased's declared earnings in the last full year before his death increased in subsequent years to the date of trial by reference to movement in the data for residential housing in Queensland outside Brisbane prepared by the Construction Forecasting Council.[155]  The second assumed that in addition to his declared earnings the deceased was earning a substantial amount in cash which was not declared. It attempted to identify his total earnings by reference to evidence of average figures for the industry.  

   [155]Mr Crouch worked in the area covered by the figures, ie residential housing outside Brisbane.

Cash earnings?

1. Unsurprisingly, the defendants challenged the second scenario.  They did so on the basis that there was no evidence that Mr Crouch was in fact earning significant undeclared cash amounts.  Ms French submitted that it was an inference which could be drawn from some direct evidence of cash earnings, from the magnitude of the support which he provided to his two oldest children and from the evidence of Mr Lee that the declared earnings did not reflect Mr Crouch’s full earning capacity.

1. The direct evidence is sparse.  Ms French testified only that Mr Crouch occasionally did cash jobs but they were infrequent.  Ms Gordon testified only that he did occasional cash jobs.  Both women were aware of the supplementary support which he provided to the older children, but neither quantified it.  Mr Lee was not in a position to give evidence of what was in fact the explanation for that the disconformity which he sought to demonstrate.  However Ms French testified that he worked a 35 hour week by choice, in order to spend time with his family.

1. In my judgment Ms French has failed to prove that Mr Crouch was earning significantly more than his records disclosed.  It would be surprising if he were to have been doing so without the knowledge of either of the two women with whom he had lived.  Ms French, who was in a position to know, explicitly said in her evidence-in-chief that he declared the majority of his income for tax purposes; cash jobs were infrequent and to the best of her knowledge everything which he earned was given to the accountant for the purposes of the tax returns.  The descriptions which they gave of the supplementary support do not suggest the presence of significant amounts of additional income.  The most likely explanation for the disconformity between earnings and earning capacity was Mr Crouch's work on the renovations and his choice to work a 35 hour week, not the fact that he was working additional hours for cash.

1. I am not satisfied that Mr Crouch's records do not disclose a fair picture of his earning pattern in the years leading up to his death.  The factual foundation for Mr Lee's second scenario to has not been proved.

Projected increase in earnings

1. The defendants challenged Mr Lee's use of the Construction Forecasting Council data as a basis for determining projected increases in earnings after Mr Crouch's death.  They did so on the ground that the figures reflected increases in prices, not wages or earnings; and they reflected not only such increases but also increases in volume/demand.  They submitted that there was no evidence that Mr Crouch had the capacity to take on employees or otherwise to handle additional work.  They pointed out that Ms French had not called any evidence from someone engaged in the industry or an associated industry (say a similar painter/decorator) of actual increases in earnings from 2003 to 2010 and had not led any evidence from Mr Poole, a carpenter who had worked with Mr Crouch, of work availability or income potential.  Moreover, there were no CFC data for the period covered by Mr Crouch's tax returns, so it was not possible to compare the increase in his earnings over that period with that data.  However the increase in earnings over the period of six years was just under 30%.  The projected increase based on CFC data for the six years after Mr Crouch's death was 120%.

1. Ms French submitted that the use of the CFC data was appropriate, because it made allowance for Mr Crouch’s capacity to increase the amount of work which he undertook.  She submitted that I should find that he would probably have exercised that capacity, having regard to the lifestyle which the family adopted and the uncertainty about her resuming work after the end of her maternity leave in relation to the birth of Naomi.

1. In my judgment the CFC data is of indicative value, but no more than that.  Nonetheless, it stands alone and its accuracy was unchallenged.  I am satisfied that Mr Crouch chose to work only 35 hours a week and that he could have worked longer hours had he so desired.  The home renovations were nearing completion; when that happened he would have had more free time.  I find that he probably would have worked longer hours following Naomi's birth.  He would have had little choice but to do so. He had an extra mouth to feed and a wife who, I am satisfied, felt she ought to stay home to look after the two infants.  The difficulty is determining the extent of those longer hours and the impact which that would have had on Mr Crouch's earnings.

1. Over the seven years prior to his death, Mr Crouch’s “trading” results were as follows:

YEAR ENDED	GROSS INCOME	EXPENSES	NET PROFIT
30 June 1996	$26,928	$5,177	$21,751
30 June 1997	$33,757	$4,672	$29,085
30 June 1998	N/A	N/A	N/A
30 June 1999	$21,667	$3,430	$18,237
30 June 2000	$28,500	$4,773	$23,727
30 June 2001	$34,057	$8,148	$25,909
30 June 2002	$34,814	$7,746	$27,068

1. It is noteworthy, as counsel for the vehicle defendants submitted, that over the six year period covered by that table the gross income increased by 29% and the profit by 24%.  The difference reflected the acquisition of a new utility vehicle in 2001.  That vehicle was used for private purposes as well as for business purposes (for example, Mr Crouch drove it to the barbecue on the night he died and Ms French drove it home).  Vehicle expenses and depreciation dominated Mr Crouch’s expenses: about 65%.  Doubtless that was the reason the vehicle defendants submitted that I should disregard the CFC data but assess damages on the basis that Mr Crouch’s declared earnings (net after tax) would have increased by 30% in the period after death.

1. The logic of that approach is correct, as far as it goes.  However it makes no allowance for any increase in the number of hours worked.  The CFC data suggests that Mr Crouch's skills would have been in high demand.  On the other hand, he was no workaholic.  He cared about his family and put considerable time and effort into it.  Conscientious though he was, I do not think he would have increased his working hours a great deal beyond a 40 hour week.  In my judgment it is reasonable to calculate Ms French’s damages on the basis that for the fiscal years 2004 onwards, Mr Crouch would have worked an average of 42 hours per week.  That represents an increase of 20%.

1. Mr Crouch’s taxable income for the 11 months preceding his death was $24,863 and tax on that amount was $3,838.  His net income after tax was therefore $21,025.  That amount should be divided by 11 to make it applicable to one month (June 2003), viz $1,910.  For the purposes of calculation, that represents a notional annual net income for 2002-3 of $22,920.

1. Over the six year period to the end of 2008-9, that amount would have increased by 20% by reason of additional hours worked and 30% by reason of other factors.  The notional income net after tax for 2008-9 is therefore:

   $22,920 x 1.2 x 1.3 = $35,755.

2. For the sake of simplicity (although perhaps a little artificially) I assume that the increase would have been evenly distributed over the six-year period and would have continued at the same rate until 31 March 2011.  For ease of calculation I select that date as the date to which past items are to be calculated and from which future items are referable.

1. I find that Mr Crouch’s net earnings for the period from the date of his death to 31 March 2011 would have been:

2002-3 (annual $22,920)	$  1,910
2003-4	$25,059
2004-5	$27,198
2005-6	$29,337
2006-7	$31,477
2007-8	$33,615
2008-9	$35,755
2009-10	$37,895
9 months to 31 March 2011	$30,025

Table 1 – Past earnings after tax

By way of comparison with the 2009-10 figure of $37,895, the indicative figure resulting from the use of the CFC data for 2009-10 was $49,005.  I am not persuaded that that figure should be adopted or that any reason has been shown for increasing the figures which I have calculated.

The combined pecuniary dependency

1. Two broad approaches were identified in the submissions.  One was the inaptly named conventional approach, which attempts to ascertain the value of the dependency by the use of average figures.  The other is the individual circumstances approach, which attempts to estimate the value of the dependency on the basis of the best available evidence in the particular case, regardless of the reliability of that evidence and the cost and time involved in obtaining and processing it.  The taxi defendants favoured the former approach; the vehicle defendants the latter.  Ms French had an each way bet: the submissions on her behalf left it up to me to decide.

1. The so-called conventional approach has not been considered explicitly by the High Court of Australia, although it appears to be popular in the United Kingdom.  It may have had some validity when applied in a situation where the deceased was the sole breadwinner for the family and the dependants were his wife and one child.  I doubt its suitability in a case such as the present. The taxi defendants sought to justify its use by citing Professor Luntz:

“Theoretically, the individual circumstances of each case should be taken into account, since the proportion of a breadwinner's income available to the other members of the family is influenced by many variable matters other than the number of children, such as the size of the income, the deceased's personal habits and attitudes, and the possible earnings of the other family members themselves.  Nevertheless, the evidence given on such matters is often unreliable and the time spent in investigating it may not be worthwhile when the whole process is so fraught with contingencies, so that averages do provide a better starting point.”[156]

That may be so in cases where there is a dearth of available evidence, but in my view in a situation as complex as the present, it should be an approach of last resort.  In any event, there is no such dearth of evidence in this case.  I prefer the orthodox approach favoured by the vehicle defendants.  However it probably does not matter a great deal which approach is chosen in this case.  As counsel for the taxi defendants observed:

“I've approached it one particular way using dependency tables, and the like, and future calculations, which are always enjoyable to participate in, and I've come up with a particular figure after some discounting by 15 per cent.  I noted with some interest that the co-defendants have approached it another way and we've come very close … .”

[156]Professor Harold Luntz, Assessment of Damages for Personal Injury and Death, Fourth Edition, LexisNexis Butterworths, 2002 at p 499 [9.3.2].

Mr Crouch's expenditure on himself

1. In cross-examination on behalf of the vehicle defendants, Ms French conceded that Mr Crouch would have spent in the period leading up to his death about $100-$130 per week on his own needs.  Cigarettes constituted the largest single item in that figure.  That was less than the amount of $180 per week estimated by Mr Lee.  I find Mr Lee's reasons for increasing the estimate unpersuasive.  I prefer the figure proposed by the vehicle defendants, $115 per week, as the starting point.

1. The vehicle defendants applied that figure without any increase during the years between the date of death and the date of judgment.  However they did so on the basis that there should be no allowance for an increase in Mr Crouch's earnings during that period either.  To maintain the comparison of like with like I shall apply annual increases to the amount which Mr Crouch is taken to have spent on himself.

1. Mr Lee calculated increases using the movement in the consumer price index for the alcohol and tobacco group, rather than the (smaller) index for all groups.  He did so because he was instructed that “Ms French primarily handled the family finances” and Mr Crouch “got $50 a week which he spent primarily on cigarettes”.  That is less than half the total spent on himself.  I shall discount the amounts of the increases[157] slightly to take that into account.  For convenience I include in the table figures for the nine months to 31 March 2011.

   [157]Taken from Exhibit 14, tab 2, p 34, table 15.  The result is still significantly higher than the “All Groups” index.

YEAR ENDED	MOVEMENT	PERSONAL EXPENDITURE
PW	PA
2003 (4 weeks)	1.000	$115.00	$   460
2004	1.038	$119.37	$6,210
2005	1.069	$122.94	$6,390
2006	1.110	$127.65	$6,640
2007	1.141	$131.22	$6,820
2008	1.197	$137.66	$7,160
2009	1.239	$142.49	$7,410
2010	1.263	$145.25	$7,550
31 Mar 2011	1.319	$151.69	$5,915

Table 2 - Amount of personal expenditure

Past loss of support

1. Following the methodology of the vehicle defendants, past loss of support is determined by subtracting the amount for personal expenditure from the amount of after-tax income.

YEAR ENDED	TABLE 1	TABLE 2	SUPPORT
2003	$  1,910	$   460	$  1,450
2004	$25,059	$6,210	$18,849
2005	$27,198	$6,390	$20,808
2006	$29,337	$6,640	$22,697
2007	$31,477	$6,820	$24,657
2008	$33,615	$7,160	$26,455
2009	$35,755	$7,410	$28,345
2010	$37,895	$7,550	$30,345
31 Mar 2011	$30,025	$5,915	$24,110
TOTAL			$197,716

Table 3 - Amount for past pecuniary support[158]

[158]Rounded figures in two columns.

1. The parties were agreed that interest should be paid on that amount at 2.88% per annum. However that was a number of months ago, and the rate mandated by s 60(3) of the Civil Liability Act 2003 is to be determined as at 1 April 2011; it is 2.755%.[159]  Interest is therefore:

   $197,716 x 2.75% x 7.8 ≈ $42,400.

   [159]Figure from the ‘Capital Market Yields—Government Bonds—Daily—F2’ table from  My calculations were done during March, using the rate of 2.75% which was then appropriate.  I have not changed them to reflect the additional 0.005% and will not do so unless requested by one of the parties.

   Future loss of support

1. As at 1 April 2011 the value of the weekly loss of dependency was:

   $24,110 / 39 ≈ $618.

2. The vehicle defendants submitted that future loss should be calculated on the basis that the weekly loss of dependency would continue unabated until Naomi, the youngest child, reached the age of 21 on 14 July 2024.  I accept that submission, although I have not found that the weekly loss was the amount for which they contended.  The amounts of money with which we are concerned are not large, and there is no reason to think that Mr Crouch would have increased his spending on himself until all his children ceased to be dependents.  I also accept their submission that from that time, it may reasonably be expected that Mr Crouch's income would be divided equally between him and Ms French until he reached retirement age, 65.  There was a suggestion on behalf of Ms French that at least one child, Taylah, should be regarded as likely to have continued as a dependent beyond the age of 21, but I do not think the evidence supports such a finding.

1. The task then is to determine the present value of:

   $618 per week for 13.25 years

   plus the present value[160] of:

   $30,025[161] / 39 / 2 ≈ $385 per week for another 7.8 years thereafter.

   Using the program PICalc[162] I find those amounts to be $314,500 and $68,250 respectively, a total of $382,750. 

   [160]At 5%: Civil Liability Act 2003, s 57.

   [161]Table 1, 31 March 2011.

   [162]Published by M Howard, Brisbane.  I have not verified the accuracy of this calculator and ask that counsel check the calculations before the order is taken out.

   Loss of services

1. Mr Crouch performed a number of household services for his family.  Such services which are or will be replaced at pecuniary cost can found a head of compensation.  In the present case Ms French and Mr Crouch were particularly dependent on each other's help as both their families lived in Europe and America.  Ms French described what he did:

Could you tell his Honour in your own words the sort of jobs and things that Stephen did around the house?--  He did all the renovations of our home and was continuing to do that.  So, I mean, as I said, we had to gut the place, really, and put in new kitchens, bathrooms and he did all the decorating, of course, and the tiling and so, I mean - you want me to talk hourly terms or?

We will come to hours, but first of all just what are the mundane tasks that needed to be done around the house that he did and avoided you having to do them?--  Right.  Well, he did do a fair bit of cleaning because we had this - this arrangement that I would make his sandwiches if he cleaned the toilet and the shower, and often he would clean the kitchen sink as well because he was, I suppose, more house proud than me maybe in terms of how - what state the kitchen sink was in and I mean he cleaned the cooker mainly especially when I was pregnant with Naomi and just before she was born anyway, so he did things like that.  He did cleaning of the windows, cleaning of the cars, the guttering, you know, cleaning the gutters which -----

What about the garden?--  Sorry?

What about the garden?--  He did the mowing of the lawns and pruning of the bushes we had there and planting some of the plants we had in there, yes, stuff like that.

Did you share that or was that his territory?--  No, I couldn't even start up the trimmer let alone the mowing machine, so.

I mean, since his departure, have you done those sort of tasks?--  No, I pay someone to do it.

And you still are?--  Yes.

And that's to do what, to do the -----?--  The mowing of the lawn and the pruning of the bushes, actually, yeah.

All right?--  He also - we shared the cooking, although I did the majority of the cooking he would probably cook a couple of meals a week.  He - talked about the cleaning.  He did the shopping especially when I was pregnant with Naomi, and when Isaac was young he did the majority of the shopping.  He also, I mean, also, liked, pick up Isaac from daycare when I was working, the five days that I was working a fortnight he would pick up Isaac because he finished earlier than me.  I mean, he would put Isaac to bed.  We took that in turns, but occasionally he took him to bed and read him stories and play with him and take him for walks through the park with the dog and I mean he was also involving in taking Taylah and Jordan to sports at the weekends.  Jordan still plays hockey to this day and was back playing hockey then and as I said, Taylah played netball.

All right.  So he was a fairly involved father with his children?--  Yes, yes.

Let's talk about times.  You've been asked to address your mind to how long you think in an average week he contributed services to the household?--  Mmm.

And his children?--  Yes.  I mean, so I would have said that maybe an hour of cleaning a week.  Maybe shopping two hours.  I mean he used to go down every hour when he went shopping as well, so he'd take a lot longer than I would - every week for the shopping and then if we needed extra things like milk or bread, I mean he would go and get those things.  It was easier for him to go to the shops-----

HIS HONOUR:  Could you slow down a little bit, please.  You're really a bit too fast for everyone?--  Sorry.  So, yes, he would do the majority of the shopping of the week especially as I said when Isaac was a baby and young, and the heavier pregnant I got as well, and get other things like the milk or bread if it needed be.  It was easier for him to go down than me to drag Isaac down, really.

That's included in the two hours a week you've nominated for shopping?--  Yes.

What else?--  We have the cooking, as I said, maybe a couple of hours a week.  With the gardening, I - depending on the season, he would need to mow the lawn every week especially because I've got quite a big back garden and the grass seems to grow quicker at the back garden so he would be doing it weekly in the summer or the hotter seasons and maybe fortnightly in the winter seasons.

Do you know how long it took him to mow the lawn?--  As I said, we've got quite a big back garden, maybe an hour and a half.

All right?--  And that might be every week or two.  And then I suppose with Isaac as I said he was picking him up from daycare so that would have been like five days a fortnight that maybe would have taken him half an hour on those five days and, as I said, I mean, maybe half an hour each day during the week he might, as I say, either read to him, play with him, bath him or have a shower with him and then maybe at the weekends, I mean, if he wasn't working a Saturday, maybe have more time to, you know, as I say walk the dog with him or take him out to give me a break and stuff like that so maybe an hour and a half, and I could see that increasing the older our children got when they got more into sports and stuff because Isaac played soccer for a while and Naomi used to go to dance.  I mean, we were always keen to get them into nippers and stuff like that which I plan to do this year with them as well.  Maybe that would have been increased by up to three hours at the weekends when they were in sports.  I suppose that was the time he would have taken with Jordan and Taylah taking them to sports at the weekend.

All right.  And was the house renovation you've mentioned a needling sort of on-going thing or did he do that in fits and stuff?--  Yes, that was, I think the bane of his life that he could see the future jobs and again he repainted the whole of the inside, and I mean now it is getting to the stage where it would have been needed repainting again or he would have because he had the access to the paint and all that sort of thing.  He would have maybe done it more often than I do.  I don't do it, and then there was the outside as I said, the plans to spraypaint the roof and finish off painting the guttering and rendering the house and then painting that, and as I said by the end when we got a carport and stuff he would have painted all and that stuff, yes.

Are you able to help us out with a time estimate for the amount of time he actually spent doing house renovations on an averaging type basis?--  I suppose there would have been times when he worked on it more when we first moved in and stuff like that, so maybe two or three hours a week.

On average?--  Yes, I would say so, because as I said, he was maintaining it as well.

All right.  You mentioned window cleaning?--  Yes.

How often did he do that?--  Maybe every three months.

All right.  Do you know how long that took?--  Maybe an hour and a half.

All right.  And on those access periods, where he was spending time taking his other children to sporting events -----?-- Yes.

----- how much time was involved?--  I would say that would take like a good two or three hours a weekend.

And that was -----?--  Over other weekend.

That was every second weekend?--  Yes.  Sometimes, I suppose, if Kerri wasn't available we would take them to sports to.

When you didn't have access but to assist her?--  Yes, and at one stage when Taylah was younger she was going to art lessons and then she did music lessons on a keyboard which he bought her the keyboard when she was showing an interest in playing a keyboard and stuff like that, so.”

1. I have set out that evidence at length because there was little effective challenge to it in cross-examination.  Counsel for Ms French summarised the weekly averages as follows:

Cleaning  1 hour
Shopping  2 hours
Cooking  2 hours
Gardening/mowing        1.75 hours
Picking up Isaac            1.25 hours
Older children sport      1.5 hours
Renovations                   2.5 hours

TOTAL  12 hours

As counsel observed, these figures take no account of window cleaning, cleaning gutters and cleaning cars, nor of the likely impact of an additional child.

1. The defendants challenged the total.  The vehicle defendants described the time claimed as “expansive”.  They submitted that if one had regard to the time which Mr Crouch spent at work and travelling one could only find a weekly loss of 4.5 hours which would be offset by 2 hours per week for services that no longer had to be provided to him by Ms French.  The resulting net estimate of two hours per week was less than that proposed by the taxi defendants, three hours per week for parental services and nothing for services to her.  The basis for this figure was not identified but it was submitted that parental services would diminish over time as the children became more independent and Mr Crouch aged.  They urged that as the estimates were broad estimates, I should approach them with a broad axe.

1. I accept that as the children grew up, it was likely that services provided to them would change and be redistributed.  I reject the idea that the number of hours applied to them would reduce before they left school.  Common experience suggests that if anything the opposite is the true position.  While I accept that I must approach the calculations broadly, I reject the suggestion that I must necessarily attack the figures with an axe.  The proper approach is to have regard to the evidence.

1. I have already found that Mr Crouch would have been obliged to increase the number of hours per week which he worked.  I think that would inevitably have had an impact on services which he provided around the home.  Probably it would have meant delay in completion of the renovations.  For a few years the load on Ms French would have increased; it would have contributed to her not returning to work immediately after her maternity leave finished.  Two hours per week for cooking, a generous estimate, was unlikely to be maintained.  And it must be borne in mind that what is characterised as provision of services in a litigious context (for example attending the children's sporting fixtures) might more accurately be described as recreation or part of the interchange between members of the family in other contexts.

1. Using a broad brush rather than an axe or a pressure pump, I assess the loss of services at nine hours per week until July 2021 (when Naomi will turn 18) and six hours a week and thereafter.

1. The vehicle defendants submitted that the allowance for loss of domestic services should be calculated on the basis that the services would cease at age 70.  That was justified on the ground that it gave “due recognition to the advancing years of the deceased reducing his ability to perform such services”, and to an allowance for contingencies.  Perhaps that submission should have been saved for a younger judge.  There is no evidence to suggest that Mr Crouch would have descended into decrepitude at 70 and ageist assumptions are anathema.  I adopt the approach of the taxi defendants and will allow the claim for the balance of Mr Crouch's life expectancy at the time of his death (49.3 years).  Contingencies are dealt with elsewhere.

1. The parties agreed that the value of the services was $15 per hour for past services and $18 per hour for the future.

1. I assess compensation for loss of past services over 7.8 years (409 weeks to the end of March 2011) as:

   $15 x 9 x 409 ≈ $55,200.

   Interest should be calculated on that amount at 2.75% to the end of March 2011:

   $55,200 x 2.75% x 7.8 ≈ $11,850.

2. As to loss of future services, the deceased's life expectancy at the time of death was approximately 49.3 years, of which 41.5 years should now be regarded as in the future.  Of that, 10.3 years (the period to when Naomi turns 18) should be assessed on the basis of nine hours ($162) per week and the balance (31.2 years) on the basis of six hours ($108) per week.  Present values are:

$162 pw for 10.3 years @ 5%   ≈      $   68,400

$108 pw for 31.2 years after 10.3 years @ 5%   ≈      $   54,650

[163]See note 162.

Total  ≈     $ 123,050[163]

Contingencies

1. Conventionally amounts awarded in respect of future earnings are discounted for contingencies.  The same applies to amounts awarded for future loss of support.  Presumably the theoretical basis for doing this is that the method of calculation assumes more favourable factors than unfavourable ones; so a discount must be applied to restore balance.  There is no evidence that Mr Crouch faced any abnormal contingencies in the future.  Balance will be adequately restored by discounting the future awards by 10%.

Total

1. Collecting the foregoing, I assess Ms French's claim as follows:

Past (to 31 March 2011) pecuniary loss[164]           $197,700

Interest thereon[165]  $  42,400
Future pecuniary loss[166]      $382,750
  less: discount @ 10%         $  38,270
  $344,480

Total pecuniary loss (rounded)  $584,600

Past loss of services[167]  $  55,200

Interest thereon[168]  $  11,800
Future loss of services[169]     $123,050

[164]Paragraph [247], Table 3.

[165]Paragraph [248].

[166]Paragraph [251].

[167]Paragraph [260].

[168]Ibid.

[169]Paragraph [261].

  less: discount @ 10%         $  12,300

$110,750

Total loss of services  $177,750
TOTAL  $762,350

1. I ask counsel to check my calculations before this judgment is perfected.

Distribution among dependants

1. Assessing the matter of distribution of the compensation is a complex exercise.  The defendants quite reasonably made no submissions on this issue.  The plaintiff submitted that mathematically it should be done as follows:

Ms French  51.5%

Taylah  6.0%
Jordan  8.5%
Isaac  16.0%
Naomi  18.0%.

The submission did not indicate what mathematical process had been followed to determine those percentages.

1. The defendants’ calculations in other respects were based on acceptance of the proposition that all of the children would remain dependent until they turned 21.  I have already rejected a suggestion on behalf of Ms French that a later age should be accepted for one child.  I shall apportion on the basis of dependency to age 21.  The periods of putative dependency of the children were:

01/06/2003 to 13/07/2003        3 children

14/07/2003 to 16/04/2011        4 children
17/04/2011 to 03/10/2014        3 children
04/10/2014 to 02/02/2022        2 children
02/02/2022 to 13/072024         1 child
13/07/2024 to 01/05/2032        no children.

1. The bulk of the support for Taylah and Jordan was paid as child support and for this reason, that should be treated as a “first charge” on the available funds.

1. Perhaps not surprisingly, the evidence does not reveal any substantial non-financial services provided to Taylah and Jordan.  Such services as there were are adequately catered for by adopting a starting figure at the top of Ms Gordon's range for financial support, that is, $200 per week for the two children.  There is no reason not to apportion it to them at an equal rate.

Taylah

1. Taylah’s dependency ends on 16 April 2011.  For simplicity I shall treat all payments in respect of her as having occurred in the past.  Her loss of support lasted 411 weeks, which makes her loss $41,100.

1. Interest on that sum calculated at 2.75% over 7.9 years amounts to $8,950.  Consequently, Taylah's share of the award is $50,050.

Jordan

1. Jordan is entitled to an award of the same amount plus future financial support calculated at $100 per week to 3 October 2014, a period of 3.5 years.  Using the program referred to above, I calculate the latter figure to be $16,800.  After discounting for contingencies that becomes $15,100.

1. Thus, the total allocated to Taylah and Jordan is $115,200.  Of that, $100,100 is for past loss of support plus interest.

Ms French, Isaac and Naomi: past loss

1. The allocation of funds to support Taylah and Jordan leaves the following amounts available for distribution to the other three dependents:

Past loss of support + interest	Past loss of services + interest
Total	$240,100[170]	$67,00037
Less Taylah + Jordan	$100,100[171]	-
Balance	$140,000	$67,000

[170]Paragraph [263].

[171]Paragraph [272].

1. Apart from the six weeks or so before the birth of Naomi, all three would have been dependants throughout the period for which past loss has been calculated (1 June 2003 to 31 March 2011).

1. Distributing those amounts is largely a matter of guesswork.  During Mr Crouch's lifetime the financial support came mainly in the form of shared support: housing, food and transport.  My best estimate of a just outcome is to allocate 50% of the award for past loss of support and interest to Ms French and 25% to each child.

1. The award for loss of services presupposes that Ms French has replaced that part of the services which would have been provided to the children.  In practical terms the loss was hers.  I shall allocate 80% of the award for past loss of services and interest to her and 10% to each of the two children.

1. Past loss is therefore distributed as follows:

Ms French	Isaac	Naomi
Loss of support + interest	$   70,000	$ 35,000	$ 35,000
Loss of services + interest	$   53,600	$   6,700	$   6,700
TOTAL	$ 123,600	$ 41,700	$ 41,700

Ms French, Isaac and Naomi: future loss in general

1. Future losses are more complicated.  They fall into four distinct periods:

1/4/11 to 3/10/14          three dependent children

4/10/14 to 2/2/22          two dependent children
2/2/22 to 13/7/24          one dependent child
13/7/24 to 1/5/32          no dependent children.

1. The amount available before discounting but after allocation to Jordan is:

Future loss of support	Future loss of services
Total	$382,750[172]	$123,050[173]
Less Jordan	$  16,800[174]	-
Balance	$  365,950	$   123,050

[172]Paragraph [251].

[173]Paragraph [261].

[174]Paragraph [271].

1. After discounting by 10% of those amounts become $329,350 and $110,750.

Ms French, Isaac and Naomi: future loss of support

1. For each of the four periods above the amount available for allocation to these dependants is:

1/4/11 to 3/10/14          $518 pw[175]

4/10/14 to 2/2/22          $618 pw
2/2/22 to 13/7/24          $618 pw

13/7/24 to 1/5/32          $380 pw.[176]

[175]Paragraph [249] less $100 pw for Jordan.

[176]Paragraph [251].

1. For the reasons already given,[177] half of the amount available after allocation to Jordan should be allocated equally (after deduction for contingencies) to the two dependent children during the first two periods.  Using the same broad brush, one third of the amount should be allocated to Naomi during the third period.  The balance should be allocated to Ms French.  The amounts to be determined are:

Isaac$518/4 pw for 3.47 years plus $618/4 pw for 7.34 years

Naomi            as for Isaac plus $618/3 pw for 2.44 years

Ms French$518/2 pw for 3.47 years plus $618/2 pw for 7.34 years plus $618/3*2 pw for 2.4 years plus $68,250.[178]

[177]Paragraph [275].

[178]Paragraph [251].

1. I calculate the rounded amount as before discounting to be:

Isaac	Naomi	Ms French	TOTAL
1/4/11 to 3/10/14	$ 21,550	$ 21,550	$  43,100	$   86,200
4/10/14 to 2/2/22	$ 42,000	$ 42,000	$  84,000	$ 168,000
2/2/22 to 13/7/24	-	$ 14,600	$ 29,200	$  43,800
13/7/24 to 1/5/32	-	-	$  68,250	$   68,250
$ 63,550	$ 78,150	$224,550	$366,250

1. After discounting is applied, the allocations for future loss of support are as follows:

Isaac               $   57,200

Naomi            $   70,350
Ms French      $ 202,100

TOTAL          $ 329,650

The total approximates the available funds.[179]

[179]Paragraph [280].

Ms French, Isaac and Naomi: future loss of services

1. I have held above that the amounts required for replacement of services have the following present values (before discounting for contingencies):

10.3 years to 14 July 2021  $   68,400

31.2 years to about September 2052   $   54,650.[180]

[180]Paragraph [261].

1. For simplicity these amount should be allocated on the same basis as was adopted for the allocation of past loss of services.  After discounting the allocation becomes:

Discounted amount	Isaac	Naomi	Ms French
1/4/11 to 14/7/2021	$   61,550	$ 6,150	$ 6,150	$ 49,250
14/7/2021 to 30/9/2052	$   49,200	-	-	$ 49,200
TOTAL	$ 110,750	$ 6,150	$ 6,150	$ 98,450

Summary of allocations

1. To summarise, the damages awarded are allocated as follows:

Past loss of support plus interest	Future loss of support	Past loss of services plus interest	Future loss of services	TOTAL
Taylah	$  50,050[181]	-	-	-	$  50,050
Jordan	$  50,050[182]	$  15,100	-	-	$  65,150
Isaac	$  35,000[183]	$ 57,200[184]	$ 6,700[185]	$  6,150[186]	$105,050
Naomi	$  35,000	$  70,350	$  6,700	$    6,150	$118,200
Ms French	$  70,000	$202,100	$53,600	$  98,200[187]	$423,900
TOTAL	$240,100	$344,750	$67,000	$110,500	$762,350

[181]Paragraph [270].

[182]Paragraph [271].

[183]Paragraph [277].

[184]Paragraph [284].

[185]Paragraph [277].

[186]Paragraph [286].

[187]Rounded down.

Orders and costs

1. I shall hear the parties on the calculations, the form of the appropriate orders and on costs.  Subject thereto, I propose the following orders for the disposition of the various claims:

1.          Judgment for the plaintiff against the first and fifth defendants for $762,350 on her claim.

2.          Judgment for the second, third and fourth defendants against the plaintiff on her claim.

3.          Judgment for the first defendant against the fifth defendant for contribution of $152,470 on its claim against the fifth defendant.

4.          Judgment for the first defendant against the third and fourth defendants on their claim for contribution against it.

5.          Judgment for the second defendant against the third, fourth and fifth defendants on their claim for contribution against it.

6.          Judgment for the third and fourth defendants against the first and second defendants on the first and second defendants’ claim for contribution against them.

7.          Judgment for the fifth defendant against the first defendant for contribution of $609,880 on its claim against the first defendant.

8.          Judgment for the fifth defendant against the second defendant on the second defendant’s claim for contribution against it.