Goode v Thompson
[2001] QSC 287
•2/07/2001
THE SUPREME COURT
OF QUEENSLAND
BRISBANE No S 5829 of 1999 [2001] QSC 287
BETWEEN:
CHRISTOPHER DANIEL GOODE (by his next friend)
TRACEY ANNE GOODE
Plaintiff
AND:
YVONNE MARY THOMPSON
First defendant
AND:SUNCORP GENERAL INSURANCE LIMITED
ACN: 009 704 152
Second defendant
REASONS FOR JUDGMENT
B.W. Ambrose J.
Delivered the 2nd day of July 2001
CATCHWORDS: TORTS – NEGLIGENCE – Contributory Negligence – Road Accident Cases – apportionment of responsibility and damages – when a 12 year old child whilst crossing a road struck by motor vehicle – failure to keep a proper look out – failure to give warning by approaching vehicle - failure to reduce speed – whether the first defendant had discharged her duty to take precautions to guard against and avoid the accident – the degree of care owed to a 12 year old child - failure to keep in mind the propensities of a child who may sometimes act impulsively – the extent of the plaintiff’s conduct involved a substantial departure from the standard to be expected of an ordinary child of 12 years – relative culpability of adult driver of motor vehicle and child pedestrian.
DAMAGES – General Principles – Griffiths v Kerkemeyer principles – Gratuitous past and future care – when the plaintiff was in hospital whether gratuitous care from the next friend/mother was required – whether it is proper to make allowance for the attendance of parents at hospital – whether it would be unfair to require the defendant to pay damages for gratuitous care based on agencies’ costs, when no such costs have been incurred.
Guardianship and Administration Act 2000 (Qld) s 12, s 13(1), s 81 and s 245
Public Trustee Act 1978 (Qld), s 65(1), s 67(2), s 80(1)(d) & (c)
Supreme Court Act 1995 (Qld), s 16(1)Beasley v Marshall (No. 4) (1986) 42 SASR 407, considered.
Griffiths v Doolan [1959] Qd R 304, considered.
Griffiths v Kerkemeyer (1977) 139 CLR 161, applied.
Grincelis v House (1998) 84 FCR 190, applied.
Grincelis v House (2000) 201 CLR 321, applied.Gunning v Fellows (1997) 25 MVR 97, followed.
Jones v Moylan [No. 2] (2000) 23 WAR 65, followed.Kars v Kars (1996) 187 CLR 354, considered.
Lynch v Nurdien [1841] 1 QB 29, cited.
Marinko & Anor v Masri (2000) AustTortsR 81-581, considered.Marsland v Andjelic (1993) 31 NSWLR 162, applied.
Mott v Fire and All Risk Insurance Co Ltd [2000] 2 Qd R 34, applied.
Nguyen v Nguyen (1990) 169 CLR 245, applied.
O’Connell v Brisbane City Council& Another [1966] QWN 26, applied.
Pennington v Norris (1956) 96 CLR 10, cited.
Porter v Tisco Pty Ltd [1964] QWN 14, considered.
Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557, considered.
Redding v J.F. Thomson & Anor SC No 2902 of 1984, 14 October 1988, considered.
Rowes Bus Service Pty Ltd Cowan; Sufong v Cowan (1999) 29 MVR 430, considered.
Settree v Roberts [1982] 1 NSWLR 649, followed.
Sharman v Evans (1976) 138 CLR 563, followed.Thompson v The Council of the Municipality of Bankstown (1952) 87 CLR 619, cited.
Van Gervan v Fenton (1992) 175 CLR 327, applied.
W v Q [1992] 1 TASR 301, cited.
Wilson v McLeay (1961) 106 CLR 523, considered.
Winterton v Mercantile Mutual Insurance [2000] QCA 249, considered.
Counsel: Mr S. Williams QC with R.J Lynch for the plaintiff
Mr J. Griffin QC for the defendant
Solicitors: McInnes Wilson for the plaintiff
Tutt and Quinlan for the defendant
[1] At about 3:45 p.m on 8 October 1996, the plaintiff, who was then 12 years of age and returning home from school, was struck while crossing Main Street at Hervey Bay by a motor vehicle driven by the first defendant.
[2] The plaintiff suffered a very severe head injury, as a consequence of which his earning capacity was destroyed and he will need full-time care and attention for the rest of his life.
[3] As a result of his injury, the plaintiff suffers from post-traumatic retro grade amnesia and has no recollection of events leading to it.
[4] Only 3 people were interviewed who seem to have observed events leading to the plaintiff’s injury. One was the first defendant, who was driving the car when it collided with the plaintiff. The other 2 people, who were walking along the footpath of Main Street, gave statements to the first defendant’s insurer or its agents as to the events which they observed preceding the collision.
[5] Plaintiff’s counsel tendered statements taken from the first defendant and those 2 independent witnesses to establish negligence against the defendants.
[6] The first defendant was called to give evidence and it is upon her statement tendered by the plaintiff and her oral evidence and the statements taken from the two independent observers, and some photographs that were taken of the scene of the collision, upon which the issues of negligence and contributory negligence must be determined.
[7] There was no evidence of measurements taken at the scene. I found photographs taken 6 months after the accident of assistance; the most helpful were Exhibits 36, 39 and 42. I thought the slope of Main Street to the south suggested in Exhibit 37 may have been a little exaggerated in light of other photographs – due possibly to the position from which it was taken.
[8] In a statement given to her insurer about 8 months after the collision, the first defendant said that at about 3:45p.m on the day of the collision she was driving her employer’s motor vehicle in a southerly direction in Main Street approaching the “T” intersection of Main Street and Doolong Road which joins Main Street to her left – i.e proceeding off Main Street in an easterly direction. She said that the trafficable bitumen surface of the side of Main Street, along which she was proceeding, was about 7 metres in width. She said that when she was about 300 metres north of the intersection, she observed a young man standing “upon the eastern kerb of Main Street” about 24 metres south of the south-eastern corner of the intersection. She said that as she approached this person, her speed was between 50 and 55 kilometres per hour. At 50 kilometres per hour she would have been travelling at a speed of about 14 metres per second. She said she saw the young man standing in the immediate vicinity of a telephone booth and he “was in discussion with other young people who were standing in groups on the parking tarmac” which adjoined a shopping complex adjacent to Main Street. The photographs, and particularly Exhibits 36 and 42 and 44, to my mind, make it most improbable that she could have seen onto the “tarmac” until she drew level with its entrance onto Main Street shown in Exhibit 44. She said that she assumed that the young man and the people he was talking to were school-children because she was aware that students used to congregate on the parking area of the shopping centre after school finished and before they dispersed to go home.
[9] She said that as she approached the north-eastern corner of the intersection – the one opposite the corner on which the telephone box was located - she observed that the young man remained stationary in the position in which she had first observed him, with his back towards her but his face turned towards the parking area and apparently in discussion with his school friends. She said that she crossed Doolong Road and when she was “at the vicinity of” the south-eastern corner of the intersection she observed that the young man was still stationary upon the eastern kerb of Main Street and apparently still talking to his school friends. She said that her speed remained between 50 and 55 kilometres per hour and she estimated that the schoolboy was still standing in a position about 24 metres south of the south-eastern corner of the intersection. She said that she travelled half that distance – ie about 12 metres past the south-eastern corner when she observed the schoolboy “turn suddenly to his right, executing a 90 degree turn and commence to sprint across the road from the eastern to the western side of Main Street.” She said that at no time did the schoolboy look towards her and at all times had his back towards the direction from which she was travelling, except “when he actually exposed his right shoulder immediately prior to impact, his head still looking back towards the tarmac.” She said that when she saw the child run out in front of her vehicle she steered right to such an extent that about ¾ of the width of her vehicle entered upon the north-bound carriageway. Her vehicle struck the schoolboy near the left-front headlight of her vehicle. The force of the impact catapulted the schoolboy towards the footpath, where she said she had seen him standing, so that his body came to rest with his feet in the area of the kerb and channelling off Main Street on its eastern side, and with his head towards the centre of the roadway. She said that for some considerable time after the accident, skid marks, which her vehicle had left, were clearly visible on the road surface. She said that when the schoolboy swung to his right and “commenced to sprint across the road” she did not have time to blow the horn of her motor vehicle. She said that her vehicle was in an excellent state of mechanical repair and was a very quiet vehicle.
[10] The first defendant was called to give evidence and I will analyse that evidence shortly. At this stage I will merely observe that witnesses who have had no reason to observe events preceding an event which attracts their attention, sometimes tend to reconstruct an observation of events of which they perceived no reason to take any notice prior to the event which attracted their attention. Their estimates of distance, speeds and locations from which observations were allegedly made must be considered carefully when assessing their reliability.
[11] What the first defendant did say in her statement was that when she was something in the order of 300 metres north of the intersection, she had first seen the plaintiff in a stationary position, from which he did not move until she was about 12 metres from that position. I assess that evidence in the light of the photographs Exhibits 36, 39 and 40. She said that she travelled between 50 and 55 kilometres per hour until she took avoiding action about 12 metres from his stationary position. I assess that evidence in the light of Exhibit 42. On these estimates and figures, she must have had him under her observation for about 20 seconds before she reached the intersection. Her recollection is that she was still travelling at that speed – ie about 14 metres per second or a little faster - when she was 12 metres away from him when she first saw him, suddenly and without warning and with his back towards her, commence to run across the road looking backwards towards the shopping centre as he did so. According to her evidence and particularly considered in the context of photographs tendered at the hearing, he must have run at least 6 metres from his stationary position to the point of collision which occurred close to the middle of the roadway (vide exhibits 39 and 41). If her estimates of speed and distance were accurate, it would seem that in about a second or perhaps fractionally longer, while travelling a distance of about 12 metres she had swerved her car from where it was travelling in about the middle of the south-bound carriageway to a position where ¾ of its width was on the north-bound carriageway while at the same time applying the brakes of her vehicle and during that short period of time the plaintiff ran across from a stationary position near the footpath to a position close to the centre of the roadway – a distance of between 6 and 7 metres.
[12] In my judgment, an analysis of this version of events casts doubt upon its reliability.
[13] The oral evidence given by the first defendant does not strengthen her case. She gave evidence that when she saw “a young boy standing with his back towards me on the left hand side near the kerbing” he appeared to be talking to somebody. She said that she kept driving because he had not moved. She said that she continued in a southerly direction and would have been only “10 to 15 metres” from him when “just all of a sudden he ran”. She said he did not look in her direction but was still running with his head facing in the opposite direction to that in which he was running when he ran straight out in front of her car. She said that she jammed on the brakes and swerved to her right towards the north-bound lane. She said that as she got closer to the boy she observed that he was wearing a school uniform. She did say, however, that he was standing “out on the edge of the road near the gutter” but on the other side of the telephone box (ie on its southern side) as she approached it. She later said she thought that he was on the edge of the gutter (which is shown in the photographs). She reiterated that when she first saw the boy he was not standing on the footpath but to the contrary, was “in the gutter on the side of the road.” She said that between the gutter and the edge of the carriageway proper upon which she was travelling there was a distance of about 3 metres. This was covered with bitumen and is clearly shown in the photographs (in particular Exhibit 39). She said she did not attempt to slow her speed as she approached the schoolboy and the only reason she “focused on him” was because he was “sort of” near the roadway. She said that she did not expect him to run out in front of her and that is why she did not slow down because she was so close to him. She said she just kept driving the way she normally did. She said that she thought the boy was 12 or 13 years of age from his height. The second defendant’s agent taking this statement, I assume, was aware of the plaintiff’s age at the time of his injury. She said that she was aware that children sometimes do silly things when crossing a road and observed that lots of adults also do silly things. She said that she observed him simply to be a schoolboy standing on the edge of the road; she was not watching him, she was watching where she was driving. She said that what attracted her attention to him, when she was 10 to 15 metres from him (she had previously said 12 metres in her statement) was the movement that he made as he commenced to run out onto the roadway. She said that when she saw him he was 3 or 4 metres from the path her vehicle was taking and that her attention was first attracted to him when she saw him “actually take off from the edge of the gutter”. She denied seeing him on the footpath at any stage. She said he had never been between her and the telephone box (ie. on its northern side) as she was approaching him, and that she had never seen him walk across the footpath and commence to proceed across the road. She said she did not ever think, when she saw him standing on the road near the gutter, that he was in the process of commencing to cross it; she thought he was merely standing there talking to other school children over on the footpath. She said that he did not run across the road diagonally but that he ran directly out into her path. She said that after she had swerved to avoid colliding with him, she could not believe that she had actually hit him concluding that she had not “swung hard enough”. She said in the witness box, that her recollection was that the first thing she did when she saw the plaintiff running towards the path of her car was to brake and that she then turned the steering wheel. She said that at the point of impact at least half of her motor vehicle would have been over on the north-bound carriageway. She said that the first time she realised the person she saw standing on the edge of the roadway was a schoolboy was when she was about 50 metres north of the northern side of the Doolong Road intersection. I assess this evidence in the light of Exhibits 36 and 40.
[14] On 7 August 2000 a statement was taken on behalf of the second defendant from Daniel Stephen Hunjas. At the time of the accident he said that he was walking in a northerly direction along the eastern footpath of Main Street with his girlfriend, Bonnie McElhenny. They were both on their way to work at the shopping centre, which is shown in the photographs (vide exhibits 42 and 43). He said that he was walking in a northerly direction about 75 metres to the south of the intersection (vide exhibits 39 and 41) when he first noticed a young boy who appeared to be about 10 years of age walking along the footpath. He said the boy walked across the footpath on the northern side of the telephone box. He said that he did not notice whether there were other school children on the footpath, but he did notice that the child had his head lowered and was not looking where he was going; he seemed to be looking down to the ground over which he was walking. He said the boy walked across the footpath onto the road, took a few steps on the road and then for some reason burst into a sprint. He said he observed the first defendant to be driving in the centre of the south-bound lane as the young boy stepped from the footpath onto the roadway and observed that she swerved to avoid him. He said he did not really take much notice of the car until the collision was imminent. He said that he first observed it when it was only a few metres away from the point of impact with the plaintiff. He said he remembered that the plaintiff was carrying a schoolbag because after the collision its contents were spread on the roadway. He said that he did not at any time observe the plaintiff standing before he saw him walking. He said he could not really recall where he had been standing on the footpath - if he had been. His attention was apparently drawn to the boy when he saw him walking across the footpath on the northern side of the telephone box and then commencing to walk in a diagonal fashion across the road. He said that before the accident the plaintiff was walking towards the centre line “on an angle” so that his right shoulder would have been directed towards the north-bound traffic lane. This seems consistent with the evidence of the first defendant as to the profile of the plaintiff as he moved from the edge of the road towards its centre – although not consistent with her evidence as to the direction in which he was running. He said that by the time the boy stepped onto the road he was a couple of metres to the south of the telephone box. (vide exhibit 42)
[15] His girlfriend, Bonnie Ann McElhenny, was about 17 ½ years of age when she observed the plaintiff’s injury. She said that she was walking to work with her boyfriend at about 3:45 p.m on the day in question when she saw a “young boy” step out from behind the phone booth. She said “I think he noticed a car as he was crossing the road and as he noticed it he ran and by this time the woman had swerved to miss him but he ran into the front-left hand corner of the car.” While evidence of this kind may be criticised as involving opinion, hypothesis and reconstruction etc it does record the impression which the observation of events leading to the plaintiff’s injury made upon her in the seconds which it must have taken for events to unfold. She said that as the first defendant’s car approached the scene of the accident, she “seemed pretty central.” She said that when the boy walked out she heard the brakes of the first defendant’s car go on as the driver attempted to swerve to avoid him. She said that the first defendant’s car crossed the line in the middle of the road but because the boy had started to run, the collision still took place. She said that when she first observed the first defendant’s car, she was “nearly to the corner” and not very far from where the boy had stepped out (vide exhibit 42). She said that the whole event occurred pretty quickly, within a few seconds. She said “She had a bit of time. That’s why she has swerved. She knew what was going to happen. She must have thought he was going to stop but he ran.” While opinions and speculation of this sort of themselves are of limited evidentiary value, they are original evidence of and consistent with the plaintiff having been observed to commence to walk across the road and to have increased his walking pace to a running pace as the first defendant’s car approached him.
[16] She said that there were 2 or 3 “other kids” on the footpath behind the phone booth as she approached it (ie to the east of it or perhaps to its north). She said she saw 1 or 2 other children maybe 3 at the most and could hear them talking and giggling as she approached the telephone box. She said that they were on the footpath “just a little bit behind him”. She said the plaintiff had been standing on the footpath “just behind the phone booth.” The photographs indicate that she could have seen right through the glass walls of the phone booth as she approached it from the south (vide exhibits 38, 39, 40, 44 and 45). She said she saw him walk out from “behind the phone booth” onto the road at something of an angle. She said that as he walked across the road he stopped momentarily and then started running. She said that by the time the first defendant had brought her car to the corner of the intersection, the plaintiff would have been on the road. She said she observed the first defendant “slam on her brakes” and that by the time her car collided with the plaintiff, the first defendant was going more slowly than she had been at the time her brakes were applied, although not very much more slowly. Again she reiterated that the plaintiff had walked out a couple of steps onto the roadway “noticed the car and then he probably ran 2 or 3, you know, jogs. He would have pretty much almost been on the centre line.” She said that he would have been about 1 or 2 feet from the middle of the road when the first defendant’s vehicle collided with him. She said that the first defendant’s car was half way over the white centre line as she was swerving to avoid the plaintiff, but he ran into her. She reiterated that when the plaintiff first stepped onto the road he was walking but then as the first defendant’s car approached he started to run. She said it seemed to her that he was running as fast as he could, just prior to impact. She expressed the opinion that if the plaintiff had not moved off from the position where he had stopped on the roadway initially before he started to run the first defendant would have missed him completely. She said that the first defendant had “slowed down dramatically from the time she hit the brakes to when she hit him.”
[17] Although the evidence of Mr Hunjas and Ms McElhenny was not tested in cross-examination, I find it sufficiently persuasive to conclude on the balance of probabilities that prior to the plaintiff walking/running upon Main Street as the first defendant approached the point of impact, he had been talking with other school-children on the footpath on the northern side of the telephone box. I am persuaded that, had she been keeping a proper lookout, the first defendant would have observed the plaintiff with or near those children well before she commenced to cross the intersection and would have observed him commence to walk across the footpath at an angle to the kerb and onto the roadway following a course which would take him across the road at an angle to its eastern kerb into the path she was taking, with his back turned towards her as she approached him. I reject her evidence that the plaintiff was stationary in the vicinity of the eastern kerb of the roadway until she was only 10 to 15 metres from him. Upon the evidence of the independent witnesses, I find, on the balance of probabilities, that as the first defendant approached the point of impact with him, the plaintiff at the material time was stationary, if at all only momentarily, after he had walked a couple of metres across Main Street before he attempted to sprint across the rest of the eastern carriageway of the roadway.
[18] In preferring the evidence of Hunjas and McElhenny (albeit not tested by cross-examination) to that of the first defendant, I take the view that the version of events given by the first defendant in both her statement and oral evidence, is less persuasive than that given by those witnesses in their statements. It would be natural and understandable that the first defendant would be prone to reconstruct events which she had not observed in a way which would exculpate her with respect to the plaintiff’s injury. Upon my assessment of her demeanour as a witness I would not for one moment infer that she did so consciously.
[19] Over the last century and a half there have been many statements of principle relating to the nature and extent of care mature people owe to children generally known often to be lacking in judgment and often unappreciative of risks apparent to people of more mature age. It would be unprofitable to examine in detail the many statements of such principle commencing in Lynchv Nurdien [1841] 1 QB 29 and restated a century later in Thompson v The Council of the Municipality of Bankstown (1952) 87 CLR 619.
[20] The only rational explanation for his commencing to sprint across the balance of the eastern carriageway after taking a couple of paces across it and momentarily halting is that the plaintiff halted when he realised the first defendant’s motor vehicle was bearing down upon him and then instead of stepping backwards, attempted to run out of her way. Her swerve to the right, however, led to the collision when he had almost reached the centre of the carriageway.
[21] I refer to a recent restatement of principle by the Court of Appeal in New South Wales in Gunning v Fellows (1997) 25 MVR 97.
[22] That was a case where the facts were not entirely dissimilar to those in the present case. The defendant in that case had the 12 year old plaintiff in view over a distance of 80 metres. The plaintiff was standing with 2 companions of similar age with a push bike on a footpath with a steep driveway leading from it onto the carriageway along which the defendant was driving. As the defendant approached the driveway, the child pedalled his bicycle down the driveway and increased the pace of his pedalling as he crossed the gutter onto the carriageway along which the defendant was driving and she collided with him. He suffered very serious injuries and was unable to give evidence at the trial.
[23] A master found the motorist guilty of negligence and apportioned responsibility for the child’s injury at 75% to the motorist and 25% to the child.
[24] Beazley JA analysed various cases decided in New South Wales (and one in South Australia) including a decision in Settree v Roberts [1982] 1 NSWLR 649, where Hope JA had observed at page 4 –
“Seeing a group of young children so close to the side of the trafficable portion of the road, even though their backs were turned to that portion of the road, the defendant had a duty to take appropriate precautions to guard against the event that one or more of the children might do what children have a well know propensity of doing, that is move suddenly out onto the road: cf Mye v Peters (1967) 68 SR (NSW) 298. That one of the children might so act was a possibility which the defendant ought reasonably to have foreseen and guarded against. There was ample time and ample room for her to adopt some course of action to avoid the risk of an accident; she took none. (slowing down or by adopting other courses available to her) … she would have given both the plaintiff and herself a greater opportunity of avoiding the accident. The use of the horn would have warned the plaintiff of the danger created by her approach.”
[my precis in italics]
[25] Turning to the facts in Gunning, Beazley JA observed –
“Master Greenwood found that from the point of view of the appellant (the motorist) driving west on Ashmont Avenue he was able to see three children and the bike, as I have said, at a minium distance of 80m. Given the degree of vigilance and responsibility required of a driver in the circumstances of this case, I am of the opinion that the appellant clearly breached the duty which he owed to the respondent to become aware of the presence of the children on the footpath and as Master Greenwood found, to have been aware of the impulsiveness of a young boy of about the age of the respondent to ride down a steep driveway. The appellant in those circumstances was required to keep an eye on the children to see what they might do and to be in a position to take preventative action, if necessary, such as to have sounded his horn, to have slowed down and if necessary to have braked and swerved so as to avoid a collision.”
[26] A further relevant consideration in this case is the fact that outside an entrance to school grounds it is not unusual to find road signs requiring a reduction in speed from 60 km/hr to 40 km/hr shortly before, during and shortly after school attendance hours. Reasonably thoughtful motorists must attribute this required reduction in speed limit to a community awareness that some school children, because of immaturity, sometimes act suddenly, foolishly and impulsively without taking care to avoid obvious risks to their personal safety. While of course the school which the plaintiff attended was well away from the place of his injury, the first defendant was well aware that school children used to congregate near that place before dispersing to walk home. With that knowledge as she approached that place, she should have taken the care which is appropriate when approaching the entrance to a school to or from which school-children might cross the road outside it.
[27] Upon my analysis of the evidence in this case the first defendant was guilty of negligence which was a cause of the plaintiff’s injury in:-
(a)failing to keep a proper lookout as she approached the plaintiff whom she observed to be a child of 12 to 13 years of age in company with or at least conversing with other children to ensure that she could stop, slow down, or take action to avoid colliding with him should he move towards the path of her vehicle as he had indicated he might do, being apparently unaware of its approach;
(b)failing to give him any warning of her approach as she crossed the intersection when she should have foreseen that there was an appreciable, if not indeed likely, prospect of his attempting to cross the roadway in the path of the vehicle she was driving, apparently being unaware of its approach;
(c)failing to reduce significantly the speed of her motor vehicle as she approached the plaintiff as he was preparing to cross and/or was commencing to cross the roadway with his back towards her being apparently unaware of its approach;
(d)failing to keep in mind the propensities of children to sometimes act impulsively and without mature judgment when she observed or should have observed his advancing towards and proximity to the point of her impact with him.
[28] With respect to the issue of contributory negligence, I am content to apply what was said in Gunningv Fellows (supra).
[29] The only matter argued upon appeal in Gunning was the apportionment made by the master for contributory negligence. Having referred to observations in Pennington v Norris (1956) 96 CLR 10 at 16 Beazley JA continued at 100 –
“In this case the respondent, although not a very young child, was still not quite 12 years of age. The appellant was able to see him at least from about 80m before the point of collision.
Having regard to the fact that a motor vehicle of its nature is able to inflict a greater injury than is a bike and taking into account the fact that the very duty including the standard of care, which is imposed on the appellant, so as to recognise that children often act suddenly, impulsively and without thought or perhaps to adopt the language of senior counsel for the appellant stupidly and illogically, I am of the opinion that the Master’s assessment of contributory negligence was within an appropriate range having regard to the circumstances.”
[30] I find that the plaintiff was guilty of contributory negligence. He clearly kept no better lookout for his own safety than did the first defendant. But by his inadvertence and lack of care for his own safety he put nobody at risk but himself. On the other hand, the first defendant’s failure to keep a proper lookout and to take precautions against the very sort of foreseeable childish conduct in which the plaintiff did engage leading to his injury as she drove a large motor vehicle towards the path, which he was obviously intending to take and was indeed taking, seems to me to be much more culpable than his negligence. In my view, had she been keeping a proper lookout she would have realised the likelihood that the child had not observed her approach and should then have slowed down and sounded her horn. She did none of those things until she was within 10 to 15 metres of the child, who I am satisfied by then had embarked upon a crossing of the road without adverting to her approach and had reached a position some metres to the west of the eastern kerb of the roadway. When he became aware of her approaching; in a split second decision, he elected to proceed forwards rather than remain stationary or go backwards.
[31] In Griffiths v Doolan [1959] Qd R 304 Wanstall J, in a case somewhat similar to this where the injured pedestrian was a child 5 ½ years of age, assessed her share of responsibility for her injury at 10%.
[32] In Porter v Tisco Pty Ltd [1964] QWN 14 Lucas AJ, considering a somewhat similar case where the injured pedestrian was an adult, found that his proportion of fault was 40%. Similarly in Rowes Bus Service Pty Ltd Cowan; Sufong v Cowan (1999) 29 MVR 430 a 17 ½ year old school girl, who was injured when she walked into the path of a vehicle from a position where her presence was obscured by a stationary bus used by adults and children, was held 40% responsible for her injury. In Redding v J.F. Thomson & Anor (SC No 2902 of 1984) de Jersey J on 14 October 1988 held a 9 year old child 50% responsible for his injury. The child’s conduct was “considered as having involved a substantial departure from the standard of care to be expected of an ordinary child of nine years”. Apportionment required comparison of the relative fault of the motorist who drove a truck in the middle lane of three inbound traffic lanes at a time when his headlights and street lights were on and that of the child who had crossed three outbound lanes and one inbound lane in dark clothing before the motorist observed him when about 20 feet away, but who nevertheless had almost stopped his vehicle before impact.
[33] Upon my analysis of the apportionment in that case, the motorist had no reason to believe he was or might be driving towards the path that might be taken by a 9 year old child across a six lane roadway from his right hand side. His negligence was his failure to observe the child as he crossed three outbound and one inbound traffic lanes in hours of darkness. In my view the apportionment of fault in that case lends no assistance to the apportionment of fault in this case because the fault of the driver here upon the facts is attributable to a significant degree to the perceived age of the child walking in broad daylight towards and over the edge of the carriageway and then upon it with his back towards her in circumstances from which she could readily infer his intention to continue to walk across it in the path of her vehicle, and her failure to take care to avoid the foreseeable danger to the child which would result if she failed to give warning of her approach and/or reduce her speed.
[34] In Gunning v Fellows, which I have analysed, the child’s share of responsibility was assessed at 25%.
[35] In my view the relative fault of the first defendant in this case is greater than was the case in Gunning v Fellows. Had she been keeping a proper lookout, she should have been aware that a school boy of 12 or 13 years of age, intent upon crossing the roadway in her path and apparently unaware of her approach, had commenced to cross it and she failed to take any precautions to bring to his notice her approach or to slow down her vehicle.
[36] Having regard to the cases to which I have referred as an indication of the way apportionment for contributory negligence has been made over the last 40 years in cases involving infant plaintiffs injured while crossing roadways, I apportion fault for the plaintiff’s injury at 20% to the plaintiff and 80% to the first defendant.
[37] At the time of his injury the plaintiff was a little over 12 years of age attending Kawungan State School from which he had walked on the day of his injury presumably with school friends of a similar age to the scene of the accident. He was then in year 7 and reference to his first semester school report indicates that his teacher then concluded “Chris displays a sound understanding of all areas of year 7 work. He shows particular interest in science and computer studies.” A comment upon his performance by the principal of that school on 13 December 1996 was –
“Has trouble socialising – negative attitude to school – left KSS 27.5.96 – enrolled school of distance education – re-enrolled KSS 22.7.96 as school of dist. education wasn’t solving his problem – has not attended school for term 4 due to hospitalisation after car accident.”
[38] It appears from the school report that during his first semester attending that school he was absent for a period of 30 days. Presumably he had returned to the Kawungan State School during the second semester and had been attending that school for a little over two months at the time of his injury.
[39] It is clear that the plaintiff had difficulties when he commenced school. He had difficulty socialising with other children and coping with school discipline. He became depressed and from time to time apparently very angry. Eventually he was diagnosed as having Attention Deficit Disorder but it was observed that he was within “the gifted range”. Tests then conducted indicated that he was performing within the high to high average range of intellectual activity. The diagnosis of the ADD led to him been given a drug Ritalin but he did not stay on that medication. He had difficulties at a number of schools that he attended in his junior years because presumably some of the teachers with whom he came into contact were not trained or able to cope with his reactions attributable to whatever condition from which he then suffered. Subsequent medical opinion has doubted whether he really did suffer from ADD.
[40] It seems, however, that efforts were being made at the time of his accident to reintegrate the plaintiff into the ordinary state school education system after his parents decided that the distance education to which he had been subjected for a couple of months in the middle of the 1996 school year was not succeeding.
[41] Prior to his injury, however, the plaintiff participated in various sporting activities, although he did not play any organised team or competitive sports. He seemed to be interested in scientific matters and in using telescopes, microscopes etc and preparing programs for his home computer.
[42] In the collision, the plaintiff suffered fractures in the right basal and occipital regions of his brain with cerebral oedema. He was transferred to the Mater Children’s Intensive Care Hospital principally for that injury. As well as his head injury, he suffered a fractured right pelvic ischium. He received intensive therapy at the Mater Children’s Hospital until 21 October 1996 and was discharged from that hospital on 31 January 1997. He had a prolonged phase of post-traumatic amnesia and exhibited bilateral spasticity. His left side was more greatly affected than his right. He suffered visual impairment and the problems were worse with his right eye than with his left. He also exhibited behavioural problems. I accept as accurate the resume of injury contained in the report of Dr Wallace (exhibit 13).
[43] Eventually the plaintiff attended special schools but his behavioural problems and constant headaches and inability to cope with other people, even in the special school environment, required constant attention – which he seems to have received from members of his family. In September 1997 when examined by Dr Wallace, the plaintiff was slightly obese and demonstrated impulsive, obsessive and repetitive behaviour. His coordination was reduced and he walked with a wide based gait. There was evidence of left hemiparesis and other motor neurone signs to both sides but more to the left than to the right. He had mild bilateral optic atrophy and a left homonymous hemianopia. Twelve months after his accident he was experiencing headaches which upset him emotionally and caused uncontrollable hand shaking. He experienced associated visual hallucinations. Drug therapy gave some control of these conditions. He was observed to exhibit a lot of frontal lobe type behaviour with disinhibition, impulsive and repetitive behaviour. He had exhibited some obsessional behaviour prior to his accident but it had become very significant and disruptive as a result of the injuries he received in the accident. He then needed constant attention by his mother to train him the way a two year old needs training. His impulsive behaviour with his reduced coordination was a danger to him. He seemed to have no awareness of the likely consequences of his actions. Assessments prior to his injury had placed the plaintiff in the average to above average range of ability in various areas. Subsequent to his injury however, he was found to have a full scale IQ of 66 with a verbal IQ of 73 and a performance IQ of 64. This indicates a greatly reduced cognitive function. At that time he was in a special education system and Dr Wallace observed that there could be improvement in his cognitive function for a period of 4 or 5 years after his injury. That is up until about September 2001. Dr Wallace was of the view that the plaintiff was going to require significant ongoing support in the areas of his life involving motor skills, cognitive skills and visual skills as well as by reason of his abnormal and really socially unacceptable behaviour. He would require significant ongoing support in all these areas. Some improvement might be expected over a few years.
[44] It is unnecessary to analyse subsequent reports given by Dr Wallace, who last examined him in 1998 when he expressed the view that he then required close supervision in his day to day activities 24 hours per day and would be a danger if left unattended. He expressed the view that, should the care and attention of his family be removed, his behavioural abnormalities may well be exacerbated. He said that, because of his condition, the plaintiff needs familiarity with his environment and changes cause stress; he needs to be with somebody who is familiar to him to permit a quick intervention should it become necessary. In the absence of such attention it was the doctor’s view that his condition would deteriorate and the deterioration might require large amounts of medication not necessary at the moment to keep him under some sort of control.
[45] Dr Wallace said that, in his view, a group home accommodating a number of people with an intellectual deficit where supervision, assistance etc is provided to each member of the group by the same carers on a shift basis would be difficult for the plaintiff because the conduct of other persons needing similar care may well exacerbate his condition. This would be particularly so if there were a number of carers to some of whom he might react differently. Dr Wallace expressed the view that the best environment to control the plaintiff was one where he was subjected to the attention of a carer or carers with whom he was familiar. If the plaintiff were accommodated with other people in a “group situation” he would still require a very high degree of “one-on-one” care.
[46] While the plaintiff initially suffered major seizures, those ceased with medication about 2 years ago. He will need life long medication to control them. When the plaintiff does suffer from a seizure, even a mild one, it exacerbates his behavioural and other problems.
[47] According to Mr Johnson, a psychologist who examined the plaintiff first in December 1997 and has done so subsequently, the plaintiff’s behaviour is such as to require supervision to keep himself and the community at large safe. He is unable to entertain himself for any length of time. He has a very limited capacity to control his impulsive behaviour and this condition will definitely endanger him if he were left unsupervised. Mr Johnson said that if the plaintiff were looked after in a “group home” he would need to be very well supervised by a highly skilled carer used to dealing with people with his sort of brain injury and level of disinhibition. He would require 24 hour supervision in a group home and if he was left alone with other residents needing treatment – particularly overnight – very considerable problems could arise. According to Mr Johnson the plaintiff’s need for attention would not change, whether he was in a group home or in a family environment. At whatever place he is cared for he will have a high need for interaction with other people. He said that his familiarity with the people in his home was an important aspect of his treatment/control; he said that if placed in environments with which he is unfamiliar, where he comes into contact with people unfamiliar with his condition, who are less tolerant of him, then his behaviour will worsen substantially.
[48] It will always be necessary for people who come into contact with the plaintiff to know how to deal with his particular mental problems.
[49] Mr Johnson said that the plaintiff would always require “at least a moderate level of supervision”; he said that a “high level of supervision was one which required one to one care at arms length 24 hours a day”; he said that the plaintiff’s need was “slightly below” that level. Mr Johnson said that he was familiar with the “group situation” which mostly involved accommodation and supervision of a group of four, five or six people. He said that, of the group homes with which he was familiar, some had full time carers and some had carers only at some times. Some do not have permanent carers at all residing with the occupiers of the house but only some that visit on a regular basis.
[50] He said that the plaintiff’s behaviour could be so extreme and unacceptable that his presence in a group situation might not be tolerated. He said that the plaintiff might become violent or sexually promiscuous or might attempt to become sexually active with other residents or perhaps become threatening to a carer if he did not get his own way. This potential conduct could only be controlled by a carer or carers highly skilled in behavioural management techniques who understood the nature of the disinhibitive behaviour persons suffer as a result of the type of brain injury inflicted on the plaintiff.
[51] In a group caring situation involving a number of carers working in shifts to provide 24 hour one-on-one supervision and control, not merely would the plaintiff be put at risk by his lack of familiarity with those carers, but it would be very difficult for the plaintiff with his brain injury to avoid personality clashes with other persons receiving care. If for some reason, perhaps unpredictable, he developed a dislike for another person, he would be unable to control his impulsiveness and perhaps become violent. Mr Johnson said that unless a very tight rein is kept on the plaintiff to control his behaviour – as his mother and other members of his family have kept a rein upon him - his behaviour would become “virtually uncontrollable”. He said that certainly anybody with sufficient skill and understanding could keep as tight a rein on him as his family but that many carers lack such skill and understanding. He observed that the plaintiff had not been able to control his behaviour sufficiently to be acceptable in sheltered workshops, which indeed have people who are trained to deal with persons with behavioural problems.
[52] When Dr Warlow, a psychiatrist, examined the plaintiff about 12 months after his injury he said that his age had “regressed” and that he presented more as a child of between 3 and 6 years of age than as a 13 year old child. He thought at that stage that he may improve to some extent over the next five years or so. However, he observed that most recovery from the sorts of head injuries suffered by the plaintiff was achieved within the first six months or thereabouts. He said that affective or psychotic disorders, as well as personality problems, might well exaggerate adolescent conflicts in the plaintiff. Twelve months after the injury he had a severe level of disability and the probability was that time sequelae in terms of his mental, physical and social functioning would require long term rehabilitation and would lead to a quite different lifestyle from that which he would probably have had but for the head injury.
[53] In a second report, after considering reports from other experts and interviewing the plaintiff and his mother, Dr Warlow concluded that the plaintiff was probably wrongly diagnosed prior to the accident as suffering from Attention Deficit Hyperactivity Disorder and that conclusion was supported by Professor Nurcombe. He concluded that there had been “possibly some slight improvement in his presentation which was probably explicable by the stable and positive containment” provided by his family. However, he observed that there is a possibility of a future decline in the plaintiff’s functioning as he gets older and wants to become increasingly independent and “adolescent in his personality”, which he says at this stage has not occurred to the plaintiff. It was observed that the plaintiff was incapable at age 16 of reading books which were written for children of a significantly younger age. He has compulsive behaviour including touching hot irons, clapping for no apparent reason, banging his head and sometimes holding up his penis in a public setting. However, Dr Warlow said he did not appear, at this stage, to have any mood related problems and seems to be happy and not over anxious. The medication he takes is apparently responsible for his happiness because it has helped to reduce anger rages and obsessions. His anti-epileptic medication and other medication for migraine headaches have also assisted him to not become overly anxious or upset. In Dr Warlow’s view, the plaintiff’s behaviour at the time of trial was comparable to that of an impulsive child of 8 years of age who in good spirits frequently interrupts conversations with happy although inappropriate jokes. He was observed to be fidgety and from time to time momentarily to shake his head from one side to the other. The plaintiff gave the impression of a child who was mildly mentally retarded with marked cognitive changes in terms of disinhibition, concentration and organisational difficulties with some compulsive behaviour. He said that the plaintiff’s impulsivity and disorganisation with the marked deterioration in his IQ as a result of his injury overlapped and combined so as to aggravate each other. He agreed with Professor Nurcombe’s report that, of people who do suffer from ADD as a child, approximately 50% recover by adulthood and the balance are controlled with appropriate medication.
[54] He said that, but for the excellent support he had received from his family, and particularly his mother, since his injury nearly five years ago, the plaintiff would be significantly worse than he is now. If he is less contained in his behaviour than he is currently in his family environment, this will result in vicious cycles of further problems. He has no prospect of employment in the future. Neither does he have matrimonial or family development prospects. It was Dr Warlow’s view that the plaintiff will need the level of care he is now receiving from his mother and immediate family in the future. He said that a shift of care from his family into a group housing accommodation would be highly detrimental to the plaintiff. A shift into such accommodation “could be the commencement of a slippery slope which if not caught in early stages could result in significant decompensation for himself and an inordinate amount of community resources to try and contain that. He has an adolescent body but not an adolescent mind…The hormones are there, the need to socialise to some extent with people of similar age is there.” Dr Warlow said that he would be afraid that in a group accommodation care situation the plaintiff would get into impulsive acts of a criminal nature or could easily become involved in substance abuse under the influence of others. Even if he were living in a group housing environment, he would nevertheless require a similar degree of one-on-one attention to that which he is currently receiving from his mother and other family members. I must say I am unpersuaded on the probabilities that he would receive comparable attention in such an environment to that which he presently receives in his family environment.
[55] He said that the plaintiff needs to be in the presence of or close by an adult all the time and it would be impossible for him to live on his own. I accept this evidence.
[56] Dr Warlow found it difficult to forecast what the effect would be on the plaintiff if he were perhaps 40 years of age (ie in 23 years time) should he then lose care comparable with that given to him currently by his mother and other family members. He observed “if he was 40 he would have matured further. His adolescent turmoil would have subsided. By then he would have a much more stable history behind him. I think that’s a very different scenario from if that was to occur now”.
[57] Dr Warlow said that a periodic change in carers working in shifts giving a 24 hour supervision and care, would be devastating to the plaintiff because, with his condition, it was the maintenance of the same acceptable carer which was critical because stability and sameness is very important to his capacity to function even as well as he is able to currently. It is very important for his care and treatment that he forms a personal attachment to his carer and the fewer carers the better. It will always be important that his family connection be maintained for as long as possible.
[58] At the time of trial the plaintiff was attending the Aitkenvale Special School. It is clear on the evidence that his eligibility to attend that school will cease at the close of the school year in 2001. While he has been attending it, he has been in a structured environment where he has had a one-on-one teacher aide familiar with his disability to stay with him and guide and control him during his school attendance. That school attendance has been 6 hours per day five days per week. His mother said that when he is not attending school, she constantly spends time trying to find something for the plaintiff to do that will hold his interest. She said that, once she finds him something to do, he is able to amuse himself for 10 minutes but then wants something else to do. She said he is now beginning to be able to sit a little longer than he has been able to do in the past. She said that he really needs to be the centre of attention of his carer for the time being for about 14 hours per day.
[59] The plaintiff obviously has difficulty walking. He walks guardedly, appearing to drag one side of his body. He does not seem to be able to move his left foot with ease and appears to drag it along after him. She said that sometimes he has difficulty walking around corners and she has got into the habit of holding his arm when he walks with her. She said that when he is walking in the shops, if somebody bumps into him, he may fall over because his balance is bad; she said he seems to have difficulty seeing without turning his head in the direction in which he wishes to observe something. He seems to walk into things if walking by himself. He has difficulty reading, even books he is able to comprehend; because of his eye problems he seems able to read one half of the page. He has actually learned to turn his head as he reads a line to overcome this problem.
[60] In 2000, he fell over because of problems in walking, and broke an ankle. He was confined to a wheelchair for 3 months. Should he have a setback – such as his broken ankle - he forgets how to do things that his parents have trained him to do, such as getting food for himself. He then has to be retrained.
[61] On one occasion he opened the door of a car in which he was being driven and tried to get out as it was proceeding along the road. He is now driven in a car with childproof locks and is not allowed to sit in the front seat because he tends impulsively to seize control of the steering wheel. She said that, within 18 months of his injury, the plaintiff acted like a 2 year old knowing nothing and she has had to teach him everything that he now seems to know. She said that although the plaintiff currently appears happy about everything, he gets cranky if things “go out of routine.”
[62] The plaintiff suffered a rupture to the anterior crucial ligament of the right knee. Dr Bartlett said that he had a mild motor impairment of the lower limbs involving some 10% loss of function. He has a contracture of the ankle joint, as a consequence of the head injury which he sustained, which limits the function of the limbs. He has a moderate range of motion loss in the ankle joint and in the muscles. He has a full range of motion in the hips. He suffers from a contracture to the tendo achilles which requires constant exercise to control. He said the asymmetry effected in the plaintiff’s lower limbs impairs his balance. This puts him at risk when he is caught unawares on uneven ground etc.
[63] According to Dr Gillett there is a possibility that the plaintiff may need scoliotic surgery and hip surgery in the future. Dr Bartlett, however, regarded such a possibility as remote. Dr Gillett said that the plaintiff’s neurological disability sustained in the collision affected his tendons and muscles in such a way as to cause the muscles to contract. He has an imbalance in muscle activity tone and performance involving various joints on his left side; he has an equines deformity to the left heel because the left calf muscle has tightened causing the tendo achilles to become tight. This gives him an abnormal gait which has an effect on his left hip joint. He has also developed a deformity in relation to his spine resulting from an imbalance of muscles.
[64] The plaintiff is led into physical activity by his mother on a daily basis which exercises his calf muscles by stretching them so as to prevent or inhibit their shortening. If those exercises are not maintained or if they do not succeed in allowing him to walk properly, then surgical intervention is available to lengthen the tendon. It may also be necessary to involve operative procedures behind the ankle. The need for such operation will arise if the Achilles tendon shortens to such an extent that the plaintiff will not be able to place his heel on the ground as he walks. He will only be able to walk with his heel raised off the ground with the ball of his foot on the ground. Dr Gillett said that when the plaintiff finishes growing and his skeletal development has finished, consideration might have to be given to such a tendon stretching operation. He said he will be at risk of the need for such operative treatment as he grows older. He said that the plaintiff should not have such an operation at the moment, while he is still mobile. Such an operation is a risk because it might turn somebody who is disabled in their gait into somebody unable to walk. He said that the medical costs of such an operation at the moment would be between $2,500 and $3,000. He was unable to give any estimate as to hospital costs except that he would expect that intensive therapy would be needed after such an operation.
[156] McKechnie J at 85 observed –
“After taking into account all matters relevant, the discretion is to be exercised solely for the welfare, benefit and advancement of the disabled person.
It is not an exercise in choosing between two unpalatable alternatives: denial of the moral obligation on the one hand, or a serious diminution of the capital of the trust fund on the other hand.
It is an exercise in discretion designed to make the right decision for the benefit of the disabled person in all the circumstances. Powell J was right to stress that each case would have to be considered on its merits.”
He went on to observe at the same page–
“Evidence from the trustee as to the costs of care, having regard to life expectancy, the performance of the fund, and the effect of a diminution of the fund on possible future income, will always be necessary to the proper exercise of the discretion. Without such evidence the Court will be unable to evaluate all the relevant circumstances to decide whether a payment should be made.”
[157] Commenting upon the refusal of the judge to direct any payment from the judgment in respect of gratuitous pre-trial care, His Honour observed at 88–
“Necessarily, his Honour must have concluded that in the particular circumstances, having regard to the amount claimed it was not ‘reasonably possible’.” [to make the payment for past gratuitous services.]
His Honour continued
“This wide view, as a matter of public interest, is a relevant consideration and ought to be accorded due weight. It will never be a decisive consideration by itself but should be added to the scales in favour of the making of a payment.
Another factor, which appears to have been overlooked by Sadleir DCJ, is that it may be in the interests of both the plaintiff and the public that the services continue to be provided to the plaintiff and that one measure of maintaining this public interest will be to provide some recompense to the provider of such services, notwithstanding that the trust fund would be depleted.”
He continued at 89 –
“Payment of an amount to satisfy a moral obligation will often benefit a plaintiff. Having regard to the findings of Sadleir DCJ as to the relationship between the plaintiff and Mr Peter Jones, I consider payment would benefit the plaintiff. In my opinion Sadleir DCJ erred in the exercise of his discretion in failing to give sufficient weight to the factors I have outlined. Had he given them sufficient weight, then he would have concluded that some payment to offset the gratuitous services provided to the plaintiff by Mr Peter Jones would have been to the plaintiff's overall benefit notwithstanding the overall diminution of the trust fund. I am mindful of the exquisite dilemma faced by Sadleir DCJ and indeed by the court. I am also conscious that this is an appeal against the exercise of a judicial discretion. Appellate courts do not generally intervene in the exercise of judicial discretion. Nevertheless, in the present case I consider that a substantial amount ought to have been ordered because I am quite persuaded that it would be for the benefit of the plaintiff to do so.”.
[158] As a matter of interest, analysis of the amount determined by McKechnie J at 89 shows that there had been an assessment of $250,000 for past gratuitous care together with $50,000 for interest on that sum, leading to a total award for past care and interest of $300,000. But that was a case which had settled, and that sum was reduced pro rata for contribution which would lead to the recovery of a sum of $275,000.
[159] On the facts of that case, by the time the matter came before the Full Court, $350,000 of the trust fund had already been spent on the purchase of a suitable house for the plaintiff and the working capital of the fund had been diminished to that extent. His Honour concluded, however, at 90 -
“In this case the indicative amount of $275,000 constitutes a reasonable balance between the various factors necessary to be given weight in making a decision for the benefit of the plaintiff.”
[160] He then concluded that in the circumstances of that case it would be “appropriate to make allowance for a sum analogous to the payment of interest”. And he added an extra $25,000 “representing an amount analogous to an interest payment”. All told then it was ordered that the Trustee pay to the next friend the sum of $300,000 “in recognition of a moral claim for the past provision of gratuitous services” to his disabled son.
[161] Kennedy J at 75 drew attention to the “major conflict of interest” with respect to the merits of the application for an order that part of the plaintiff’s judgment be paid out to his father in respect of past gratuitous care when counsel for the plaintiff was instructed by the plaintiff’s father as his next friend. The hearing was adjourned to permit a substitution of next friend. The father on the adjourned hearing was not represented at all. But of course the disabled plaintiff was represented by a next friend other than his father, in respect of whom the claim for past gratuitous services was made.
[162] In this case, although counsel for the plaintiff was, of course, instructed by the plaintiff’s mother as his next friend, he was instructed to represent the plaintiff and not the personal interest of his mother as a claimant for recompense for gratuitous services rendered prior to trial.
[163] To avoid the incurring of costs on further applications to resolve any question of conflict of interest, as was done in Jones v Moylan [No 2], to which I have referred, the plaintiff has called evidence from Mr Gallagher on this point. I am able to infer from that evidence the effect of a diminution of the fund on possible future income. That effect on balance makes it desirable in the plaintiff’s interest that moneys expended on the items of special damage and the value of assessed past gratuitous care be paid to his next friend.
[164] Part of the assessed damages in respect of gratuitous services which (with the assistance of other members of her family) she has rendered on the Griffiths v Kerkemeyer and Wilson v McLeay principles, and in respect of special damages which, with interest, have been assessed at $308,116.07. Having regard to the contribution of the plaintiff to his injury that sum must be reduced by at least 20% to the sum of $246,492.85. Ultimately, the sum which will be paid to Tracey Goode must depend upon the size of the fund and its likely capacity to provide future support for the plaintiff and the other considerations to which I have referred.
[165] I am satisfied, upon the evidence of Mr Gallagher, that, on balance, it will be for the benefit of the plaintiff to adopt the approach of McKechnie J in Jones & anor v Moylan (No. 2) (supra) and order payment of the sum of $246,492.85 to Tracey Anne Goode out of the judgment given for the plaintiff.
[166] Having regard to the interest payable on common fund investments with the Public Trustee – which is currently 2.8% and over the last five years has fallen from 8.25% to as low as 2.25% on 1 July 1999, it is fair to say that the rate payable has fallen rapidly since 1995 and has not exceeded 3% per annum since 1998.
[167] Keeping in mind the discount rate required to be used pursuant to s 16 of the Supreme Court Act with respect to the cost of future commercially provided services – ie 5% - the plaintiff led evidence as to the interest currently payable on funds held by Perpetual Trustees Australia Limited. After all establishment and managing expenses etc have been paid that interest is about 5.925% on the funds held. That return is nearly double the return that has been paid on the common fund managed by the Public Trustee over the last 3 years.
[168] I have had regard to a letter from the Official solicitor to the solicitors for the plaintiff dated 29 June 2001 (Part of Ex “O”) in which it is stated that –
“based on current long-term forecasts of the major asset classes, a conservative estimate return is 5.2% (being 3.53% income and 1.67% capital growth). This estimate assumes a conservative balanced investment policy – which may change in accordance with a particular strategy arising out of the financial planning process”.
[169] Based upon this forecast (which in my view is rather hopeful even if conservative having regard to the actual returns recorded over the last three years) an estimate is given as to the administration fees which would be payable over the next 60 years – which totals $188,922.00.
[170] On the other hand Perpetual Trustees, based upon past returns, expects to produce a current nett return after fees (at least in the second year of investment of funds) at a rate of 5.925%.
[171] More importantly however, the investment plan to be implemented by Perpetual Trustees is designed to produce annually, for the next 60 years, a payment from income/capital of $220,000 to $260,000 (approx) which is more than double that forecast for the Public Trustee fund which is designed to produce $111,000 to $117,000 (approx) per annum.
[172] However, the present value of all management fees for Perpetual Trustees for 60 years will be $285,596.13 – ie approximately $80,000.00 more than the management fees over that period which the Public Trustee would charge.
[173] Having regard to the projected financial needs of the plaintiff when he will require the provision of commercial care, which of course could happen at any time depending upon the capacity of his parents and family to give him the current gratuitous support, the current cost of satisfying those needs will be in the order of $150,000 per year.
[174] All things going well, the investment service offered by Perpetual Trustee obviously will provide him with annual payments from income/capital to expire at the end of a 60 year period which should be sufficient to satisfy his need for the provision of commercial care, should that become necessary within a relatively short period of time. There will even be a safety margin to accommodate an increase in the cost of such care over the next 60 years – although not an increase at the rate of increase over the last five years, which seems much greater than the rate of inflation over that period. It will also permit payment of income tax and capital gains tax, which undoubtedly will reduce the annual amount available for the plaintiff’s use but which, for understandable reasons, Mr Gallagher did not attempt to calculate over the 60 year period.
[175] On the other hand, the annual return from the fund managed as proposed by the Public Trustee will be significantly less than the sum required to meet the costs of commercial care. It will only produce, as I have indicated, from income/capital a sum of less than $117,000 per year during the 60 year period. That sum also would be reduced by income tax and capital gains tax.
[176] In the circumstances, in my view, it is to the interests of the plaintiff that the balance of his judgment, after paying part of it to his next friend for past care and the payment of special damages, be invested with Perpetual Trustees an authorised Trustee company which is listed on the Australian Stock Exchange and manages over $80 billion in funds for persons needing services and management skills of the sort needed by the plaintiff.
[177] I take into account the additional management fees payable to Perpetual Trustees to manage approximately $3.4 million for the next 60 years on behalf of the plaintiff. The precise size of the fund to be managed will be $3,401,643.60 calculated as follows: -
Damages assessed $4,560,170.60
Less 20% contribution $912,034.12Judgment sum before Perpetual Trustee charges $3,648,136.48
Damages for past care
(Griffiths v Kerkemeyer)
Special damages and interest thereon
less contribution (20%) paid to next friend $246,492.85Total for investment $3,401,643.60
[178] It is unnecessary for me to determine the interesting question whether the defendant should bear the increased management fees that will be payable by the plaintiff to Perpetual Trustees, which are approximately $80,000 more than the fees that would be charged by the Public Trustee.
[179] It has been agreed between the plaintiff and the second defendant that the plaintiff will not seek by way of damages for management fees a sum greater than that which would be payable to the Public Trustee. The Public Trustee, in its letter of 29 June 2001, estimates the present value of administrative charges with respect to the fund to be managed by it for 60 years to be $188,922.00. Perhaps, if the rate of return on the managed fund was as high as that expected of the Perpetual Trustee fund, it would be higher because it is calculated on income received rather than the quantum of capital managed. It is unnecessary, however, for me to do other than fix the sum which would be payable to the Official Trustee as damages payable to the plaintiff for management costs which is the sum of $188,922.00.
[180] I therefore assess damages in the sum of $3,648,136.48 plus management fees in the sum of $188,922.00 in the sum of $3,837,058.48.
[181] Of this sum I order that $246,492.85 be paid directly to the next friend of the plaintiff, Tracey Anne Goode, as reimbursement for special damages paid on behalf of the plaintiff and for past gratuitous care rendered by her to the plaintiff with the assistance of her family.
[182] I appoint Perpetual Trustees Australia Limited (ACN 000 431 827) (“PTA”) to be Trustee to manage the monies to which the plaintiff is entitled under this judgment.
[183] I will direct that the sum of $3,590,565.63 be paid by the defendant to Perpetual Trustees Australia Limited (ACN 000 431 827), to be held upon trust for the plaintiff and to be invested on his behalf in a managed fund which, upon the assumptions made in preparing the schedule to Mr Gallagher’s letter of 29 June 2001, should produce an annual return to the plaintiff of $140,000 average, less tax, for a period of 60 years.
[184] The after-tax benefit to the plaintiff will vary each year. During earlier years when little resort is had to capital income tax might take 40% or 50% of the “annual net” available amount produced by the fund. During the last few years relatively little income tax may be payable from the fund.
[185] Perpetual Trustees Australia Limited, in the administration of the fund for the benefit of the plaintiff, is to have all powers of maintenance and advancement and all powers to make discretionary advances on behalf of the plaintiff to his next friend and other members of his family and other persons who provide gratuitous care for him that the plaintiff would have personally if he were of full age and able to manage his own affairs, in particular, all the powers conferred upon the Public Trustee by s 80 of the Public Trustee Act 1978.
It is ordered that –
[186] There be judgment for the plaintiff against the second defendant in the sum of $3,837,058.48.
[187] The second defendant pay the judgment sum of $3,837,058.48 as follows –
(a) The sum of $246,492.85 to the next friend of the plaintiff in respect of special damages and past care;
(b) Such sums in payment of statutory refunds and charges which the plaintiff and/or the second defendant is obliged to pay from the judgment sum;
(c) The balance to Perpetual Trustees Australia Limited A C N: 000 431 827. The receipt of each payee for the payments made pursuant to this clause shall be a sufficient discharge for the second defendant
[188] Perpetual Trustees Australia Limited
· Shall hold the said sum for the plaintiff pursuant to the Public Trustee Act 1978
· Shall invest the said sum as permitted by the said Act;
· Shall apply the said sum and any income therefrom for the maintenance and advancement or otherwise for the benefit of the plaintiff;
· Shall be and remain Trustee for the plaintiff until further order of this court or the Guardianship and Administration Tribunal under sections 12 and 245 of the Guardianship and Administration Act 2000.
[189] The second defendant pay to the solicitors for the plaintiff and plaintiff’s standard costs of and incidental to the action (including reserve costs, if any) to be assessed
[190] Perpetual Trustees Australia Limited pay out of the said sum paid to it the difference between the amount recovered from the second defendant as standard costs and the plaintiff’s solicitors and own client costs (indemnity costs) to be assessed.
[191] The parties hereto and Perpetual Trustees Australia Limited have liberty to apply in respect of this order.
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