Horne v State of Qld

[1995] QSC 22

IN THE SUPREME COURT

OF QUEENSLAND
  No. 3789 of 1988
Brisbane

Before Mr Justice Ambrose

[Horne v State of Qld & Ors]

BETWEEN:

YVETTE SONJA HORNE
  Plaintiff
AND:
  STATE OF QUEENSLAND

First Defendant
AND:
  LYALL NORMAN BOETTCHER

Second Defendant
AND:
  FINNEY BRYCE TRANSPORT PTY LTD

Third Defendant
  REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered : 03/03/1995

CATCHWORDS:     CIVIL LAW - PERSONAL INJURY - whether school authority breached duty in allowing unsupervised student travel on busy roads - whether truck driver was negligent in failing to stop

CONTRIBUTORY NEGLIGENCE - plaintiff was 13 years old - the bicycle ridden in obviously poor condition - assessment of contributory negligence of a child - McHale v. Watson (1966) 115 CLR 199 - Broadhurst v. Millman (1976) VR 208

DAMAGES - whether hours claimed under Griffiths v. Kerkemeyer (1977) 139 CLR 161 for gratuitous services were necessary - amount of money per hour for care - Wilson v. McLeay (1961) 106 CLR 523

Counsel:Mr R Stenson for the plaintiff

Mr D J Campbell for the first defendant
  Mr A J Williams for the second and third defendants

Solicitors:Walsh Halligan Douglas for the plaintiff

Crown Solicitor for the first defendant

Dillons for the second and third defendants

Hearing Dates:  8 August, 1995 to 10 August, 1995

IN THE SUPREME COURT

OF QUEENSLAND
  No. 3789 of 1988

Brisbane

Before Mr Justice Ambrose

[Horne v State of Qld & Ors]

BETWEEN:

YVETTE SONJA HORNE
  Plaintiff

AND:
  STATE OF QUEENSLAND

First Defendant

AND:
  LYALL NORMAN BOETTCHER

Second Defendant

AND:
  FINNEY BRYCE TRANSPORT PTY LTD

Third Defendant

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered : 03/03/1995

On 11 December 1985 the plaintiff who was then a 13 year old school child suffered severe injuries to the lower part of her body when she fell off a bicycle she was riding from the Aspley State High School to tennis courts some distance from that school.
When she fell off the bicycle she ended up on the road surface just in front of the rear wheels of a large semi-trailer owned by the third defendant, which was then being driven by the second defendant; those wheels passed across the lower part of her body.
           The State of Queensland is sued on the basis that it is responsible for the negligence of persons in control of the Aspley State High School in permitting the plaintiff to ride a bicycle from that school to the tennis courts which she and other pupils were to attend because the roads which they needed to travel at the time of her riding (about 11 a.m.) posed a danger to cyclists of the age of the plaintiff because of very heavy traffic which they carried.
           It is also the plaintiff's case that the second defendant for whom the third defendant is responsible, was negligent in failing to stop the motor vehicle he was driving after he observed the plaintiff riding her bicycle downhill in front of his heavily laden vehicle.  In fact the prime mover of the third defendant's vehicle and nearly the whole of the attached semi-trailer had passed the plaintiff safely before she eventually fell off her bicycle into the path of the rear wheels of the semi-trailer.
           Counsel for the plaintiff while contending that there was evidence of negligent driving on the part of the second defendant, contended that upon the evidence the plaintiff's case was stronger against the first defendant because the school authority had failed to take proper or reasonable precautions in the circumstances to ensure that children, or at least those of the plaintiff's age at the time, did not ride bicycles from the school grounds to the tennis courts because of the danger that would be involved in riding along the streets which would have to be travelled to arrive at the tennis courts.
           The plaintiff at the material time was 13 years of age.  She turned 14 on 24 March 1986. At the time she was injured class room teaching for her class had finished.  The school had arranged for the pursuit of various sporting activities for its students to be conducted over about a week.  There was a variety of activities organised, two of which were swimming at baths located in the school grounds and playing tennis at Coops Tennis Courts.
           The school authorities sent notices to the parents of the children attending the school concerning the activities which would be available to them for a week after the closing of the class rooms and the plaintiff chose three activities which appealed to her.
           The plaintiff's mother became aware of the proposal and communicated with the school administration by telephone and asked about the activities.  In particular she asked about the activity which would involve the plaintiff travelling from the school to the tennis courts.  She was informed that the children going to the tennis courts would be grouped together and go to the tennis courts with a teacher from the school "in attendance" i.e. under a teacher's supervision.  In fact, the plaintiff's mother said that had she been told otherwise she would have offered to make her motor vehicle available to carry the plaintiff and other school children from the school to the tennis court area; she had often previously provided transport for children engaging in activity some distance from the school.
           It emerged in the evidence that the plaintiff did sometimes ride her bicycle from her home to the school.  She was permitted to do this however only when accompanied by an elder brother who also rode his bicycle to the school.  The route they travelled did not apparently carry the heavy traffic that Beams Road did.  Generally speaking, the plaintiff was taken to school by her mother in a motor vehicle.  It seems that she was also collected at school and brought home.
           There was a rule enforced at the school that children who rode their bicycles to school were not allowed to ride them during the course of the school day - particularly at lunch time.  The plaintiff's mother was aware of the rule.  She told the plaintiff to abide by that rule.
           On the day in question the plaintiff's mother drove the plaintiff to school in the morning.  The evidence is silent as to what arrangements, if any, were made to transport the plaintiff back to her residence after the sporting activities in which she was involved ceased.
           The first sporting activity in which the plaintiff was involved was swimming at the school.  She apparently swam with friends.  One of her friends, Connie Miles, had ridden her bicycle to school.  Earlier in the school day a teacher told the students to "make their own way to" the tennis courts and that the student roll would be called at the courts.  Connie Miles suggested to the plaintiff that both she and the plaintiff ride bicycles to the tennis courts.  The plaintiff of course had no bicycle but her friend Connie suggested that she "borrow" a bicycle left at the school by another girl, Gemma Fogarty.  This girl seems to have been more of a friend of Connie Miles than she was of the plaintiff. 
           Nevertheless, the plaintiff and her friend left a message for the owner of the bicycle and the plaintiff "borrowed it" and rode from the school a short distance down Zillmere Road upon which the school was located; the girls turned right at Dorville Street.  They rode the length of that street until it intersected with Beams Road.  They then turned left and rode down Beams Road to a position near the intersection of Beams Road and Lindley Street which joined Beams Road on the right hand side as one proceeds in a roughly westerly direction towards the intersection of Beams Road and Gympie Road.  Gympie Road at the intersection is a wide and very heavily trafficked road.  The girls were only a relatively short distance from the intersection of Beams Road and Gympie Road when the plaintiff was injured.
           It is clear upon the whole of the evidence that the bicycle which the plaintiff "borrowed" to enable her to accompany her friend, Connie Miles, to Coops Tennis Courts on Beams Road had a very defective braking system.  I am satisfied on the evidence that the brake on the rear wheel of the bicycle did not work at all and had actually been disconnected.  The brake on the front wheel of the bicycle was not adjusted correctly and I am satisfied that upon its application it would have had a diminished braking effect on the bicycle.
           I am satisfied on the evidence that the plaintiff followed the girl, Connie Miles, as they proceeded downhill along Beams Road towards its intersection with Gympie Road.  There was not much evidence given concerning the performance of the bicycle being ridden by the plaintiff which I find of any real assistance.  It is clear that the plaintiff had ridden it for sometime before the time of her injury and during that time had proceeded without mishap downhill on a number of occasions.  I infer that the pedal system on the bicycle enabled the rider of it to exert some limited control over its speed by applying weight to the pedals in such a way as to transmit a braking effect to the rear wheel rather than to increase or maintain its forward motion.  It is also clear that the girl Miles who was proceeding down Beams Road in front of the plaintiff was able to keep her bicycle under reasonable control. Beams Road over the distance travelled by the two girls before the plaintiff was injured has a significant slope down towards the intersection which the bicycles were approaching and it seems that the plaintiff had little problem in controlling her bicycle until shortly before she was injured.
           The accident occurred a long time ago - more than 9 years ago in fact - and I treat with some reservation the reliability of the recollection of the plaintiff and of her friend concerning what led up to the plaintiff's injury.
           The plaintiff said that as she proceeded down the hill behind her friend she noticed the third defendant's prime mover and semi-trailer as it was overtaking them.  She became nervous and wanted to stop.  She said that when she first noticed this semi-trailer it was about two metres from her bicycle.  At that stage she apparently became aware that the deficiency in the braking system of the bicycle she was riding could not be readily overcome.  She says she called to her friend in front to ride a little more quickly because she found that the distance between her friend and herself was narrowing and she was conscious of the third defendant's vehicle overtaking them both.  She said the semi trailer had almost passed her when as a result of her bicycle colliding with Connie Miles's bicycle in front of her she was flung off her bicycle underneath the last set of wheels of the trailer.
           According to the girl Miles, she heard the plaintiff call out to her to stop or pull up.  She said she applied the brakes and shortly afterwards the bicycle ridden by the plaintiff came into contact with her bicycle causing both girls to be thrown to the road surface. The girl Miles was thrown out of the path of the overtaking semi-trailer.  The plaintiff however was thrown into the path of the rear wheels of the semi-trailer which by that time must have almost overtaken both Connie Miles and the plaintiff.  The second defendant said that he "heard a slight bump or noise or something" and glancing in his rear vision mirror saw the plaintiff and the bicycle go underneath the back of his semi‑trailer.  The prime mover was 12 feet long and the attached trailer 36 feet long.  The vehicle was 8 feet wide.  He brought his semi-trailer to a halt some little distance on and went back to give what assistance he could to the plaintiff and her friend.
           According to the plaintiff she had difficulty in controlling the bicycle just prior to the collision.  Whether it was because the braking system was defective or because the girl Miles in front of her slowed down instead of increasing her speed as requested, I find it difficult to determine. It was probably a consequence of both.
The plaintiff and her friend Miles and the owner of the bicycle Fogarty were all interviewed by a police officer who made a record of what each told him at the time of his interview. I accept the evidence given by the police officer as reliable. To the extent that the plaintiff and her two former girlfriends give evidence to the contrary, I prefer the evidence of the police officer as to what he saw and was told by the girls concerning the condition of the bicycle and rely upon it to draw inferences relevant to the determination of the issues in this case. In this respect I rely upon ss. 18 and 101 of The Evidence Act 1977.
           It is abundantly clear in my view that Beams Road was a very dangerous road for people riding bicycles.  I draw this conclusion from the evidence given by Constable Paton, a policeman who investigated the site of the accident and also upon the evidence of the plaintiff's mother.  There is no suggestion in any of the evidence that Gympie Road was a road on which school children of a relatively young age could safely ride their bicycles.  All the evidence indicates to the contrary.
           With respect to the negligence alleged against the second defendant and third defendant, I am unpersuaded that the second defendant failed to take reasonable care and precautions to avoid causing injury to the plaintiff or to her friend Miles.
           I accept the evidence of the second defendant that as he attempted to pass the plaintiff and her friend Miles, the driver's side wheels of his prime mover and semi‑trailer were very close to, if not upon, the white line in Beams Road separating the traffic travelling towards Gympie Road from that travelling away from that road.  Measurements were taken and it is clear that as the second defendant drove his prime mover and the front part of his trailer past the plaintiff and her friend riding in front of her there was a distance of 4.2 metres between the centre line and the edge of the road near which the plaintiff and her friend were riding.  The trailer was 8 ft (2.4 m) wide.  In my view, it could not be said that the second defendant in the circumstances was negligent.  He saw two children in front of him riding their bicycles down the road as close as practicable to the left hand edge of the bitumen carriageway.  Although he observed that one of them (apparently the plaintiff) was, as he expressed it, "unsteady" or "unstable" because the bicycle seemed too big for her, there was nothing to indicate that she might swerve or otherwise end up more than 1.7 metres (5 ft 7 ins) to her right as he was proceeding past her upon the roadway with the passenger side of the vehicle extending 2.4 metres from the centre line.
           I am satisfied on the material that the cause of the plaintiff's fall from her bicycle (and indeed the cause of the fall of the other girl from her bicycle to the other side) was the fact that the plaintiff for one reason or another, be it a defective braking system on the bicycle or inexperience in riding on this road on a bicycle which appears not to have been in good condition, and which was in any event too big for her to comfortably ride, ran into the rear wheel of the bicycle ridden by her friend in front of her.  I am satisfied that when she ran into the rear wheel of the bicycle in front of her, the forces generated had the effect of throwing the plaintiff from her bicycle onto the roadway into the path of the rear wheels of the semi-trailer which apparently had almost drawn level with her when she was thrown from her bicycle.  I accept the evidence of the second defendant that at the time he commenced to drive his vehicle past the plaintiff it appeared to be safe for him to do so.  There is no suggestion he was travelling at a fast speed - indeed he had only a short distance to go before he reached the end of the slope in Beams Road down which he was travelling and at the intersection of that road where there were traffic lights.
           I am not persuaded by the arguments advanced on behalf of the plaintiff (although not as strongly advanced as those advanced against the first defendant) that when the second defendant observed the two girls riding down the edge of the bitumen strip as they approached the bottom of the hill in Beams Road, accepting that one of the girls appeared to be riding not as "steadily" or "stably" as the other one, he ought to have brought his vehicle to a stop before he reached the girls, in case the plaintiff fell off her bicycle and fell underneath his semi-trailer as his vehicle completed passing her and her friend.  In my view this would put an altogether too heavy obligation on the second defendant.  There is no suggestion really that the plaintiff did anything which in my view ought to have led the second defendant to bring his semi-trailer to a halt before it came into contact with the plaintiff.  There were vehicles behind the second defendant's vehicle coming down Beams Road.  Indeed the evidence is that the road was quite busy at the time because vehicles were coming uphill from the intersection of Beams Road and Gympie Road to such an extent that the second defendant could not drive his vehicle any further away from the girls riding their bicycles down the hill than his vehicle was in fact driven.  It was driven right over to the white dividing line between uphill and downhill traffic in Beams Road.
           In any event the fact that the second defendant was in a line of traffic, apparently with vehicles behind him and that he was driving a semi-trailer carrying 20 tonnes of paper, seems to me to make it altogether unreasonable to require him actually to bring his vehicle to a stop, two-thirds or three-quarters of the way down the hill which he was descending to enable the two girls riding their bicycles at the edge of the bitumen strip of the road to complete their descent of the hill until they reached a position where there might be even less danger of collision before he proceeded to continue driving his vehicle towards that intersection.  There was nothing to suggest to the second defendant that the plaintiff might ride her bicycle in such a way as to collide with the bicycle in front of her and so put herself and/or her friend in danger of coming to rest under the wheels of his vehicle. There was nothing to suggest that the presence of the bicycles ought to have led him to foresee that his vehicle might be a source of danger to them.
           With respect to the plaintiff's claim against the State of Queensland for breach of duty on the part of the school authority in permitting the plaintiff to travel from the Aspley State High School to Coops tennis court area, I have come to the conclusion that the school authority in the circumstances of this case was in breach of its obligation to exercise reasonable care for the safety of the plaintiff during the time that she was within the control of that authority and in breach of its obligation to exercise proper supervision over the plaintiff as she travelled between school related activities conducted at the school and at Coops Tennis Courts.
           In my view, the fact that the plaintiff on occasions in the company of her brother travelled from her home in Biera Street to the school in Zillmere Road is of little weight when one takes into account the evidence which I accept that both Beams Road and Gympie Road were roads of a kind which were very heavily trafficked and therefore dangerous for cyclists of immature age who were not trained or accustomed to use those roads.  The danger of Gympie Road of course is of peripheral relevance only.  The fact is that upon the evidence Beams Road was a dangerous road for cyclists - of whatever age - and the school authority familiar with the location of both the Aspley High School and Coops Tennis Centre knew that it was reasonably possible that some students wishing to ride their bicycles from Aspley High School to Coops Tennis Centre on Beams Road might well travel the path taken by the plaintiff and her girlfriend.  This would involve them travelling along Beams Road, which upon the whole of the evidence,  was clearly a dangerous road for any cyclist to travel - let alone a school girl 13 years of age.  In answer to interrogatory 10 (b) the first defendant says that it was aware that road traffic "represented a hazardous situation for students who rode bicycles to Coops from the school".

           The evidence is to the effect that the school authority on the day of the plaintiff's accident advised the children attending the school that they "could make their own way to" Coops Tennis Centre and indeed both walking and cycling were acceptable means of travel. (Vide answer to interrogatory 6(c) of the first defendant).  The evidence discloses that quite a number of children apparently walked from the Aspley High School to Coops Tennis Centre.  The evidence is that those children walked without any supervision of a responsible person appointed by the school authority. (Vide answer 6(c) to interrogatories delivered by the first defendant).
           It is clear that the plaintiff and her friend, Connie Miles, could have walked to Coops Tennis Centre and I would assume, having regard to the schedule of sporting activities available for the students of the school, could have accompanied other children who had participated in the swimming events at the school and elected to walk to the Tennis Centre.  Although unsupervised, such walking would have been much safer than cycling which the first defendant admits was "hazardous".
           While it is possible for mature persons to conclude that the sensible course for people in the position of the plaintiff and her friend would be to walk to the tennis courts rather than risk the dangers of riding on busy and heavily trafficked roads to that centre, one must keep in mind the predisposition of immature children - particularly those of the age of the plaintiff and her friend to make decisions that are sometimes not sensible and overlook or disregard risks that more mature people would avoid.  The plaintiff clearly acted in a foolish way I suspect under the influence of peer pressure from her friend in agreeing to travel from the school to the Tennis Centre on a bicycle which appeared not merely to be defective, but also of a size which made it difficult for her to keep it under proper control.  This is the very sort of foolish decision that some children of immature age in the position of the plaintiff and her friend, Connie, might make.  In my view it was incumbent upon the school authority organising the travelling of students from the high school to the tennis courts to take reasonable steps to prevent the very sort of foolish decision that the plaintiff and her friend Connie made from being implemented.
           It is clear that at the time of the plaintiff's injury she was travelling from one school activity organised by the school authority to another activity organised by that authority.  It is clear also that the school authority on the morning of the day in question indicated to the students of the school that they "could make their own way" from the school to the tennis court area.   Even if students had ridden their bicycles from their residence to the school it would not follow to my mind that the school authority was absolved from responsibility to see that on their trip from the school to the tennis area within school hours the children were protected from avoidable risks.  To protect children from avoidable known risks as they travelled from the school to the tennis court area in the circumstances of this case, the school authority ought to have directed that the children walk between those places under supervision of a teacher or some other person connected with the school area rather than attempt to ride their bicycles from the school to the tennis court area making use of the dangerous traffic ways connecting those places.  Even if they had been instructed to make their way by foot without supervision it would have necessarily avoided the "hazard" involved in cycling from the school to the tennis courts of which the school authority was aware.
           In my view the school authority did not take reasonable care to ensure that avoidable risks to safety of the students were in fact avoided.  Had the school authority ascertained from the children who were to travel from the school to the tennis courts on the day in question that some intended to walk (even without supervision of some responsible person acting on behalf of the authority) while others planned to "make their own way" by riding their bicycles over roadways which were dangerous to bicycle riders, I conclude that the school authority ought to have exercised its power of control and directed that students while travelling from the school to the tennis courts walk on footpaths from the school to the tennis courts, preferably under the supervision of a teacher or perhaps teacher's aide or some other responsible person appointed by the authority to exercise control and care of the students.
           There are many authorities relating to the obligation of school authorities to exercise proper supervision over their students - particularly students who have not reached maturity and are prone to act in childish ways. I refer only to Geyer v. Downs & Anor (1976-77) 138 CLR 81. In that case in the judgment of Murphy J and Aickin J at p. 101 it is observed:

"The classic formulation of the duty owed by a schoolmaster to a pupil is that of Lord Esher in Williams v. Eady (1893) 10 TLR 41 at p.42:

'It was correctly laid down by the learned Judge, that the schoolmaster was bound to take such care of his boys as a careful father would take of his boys, and there could not be a better definition of the duty of a schoolmaster.'

This was restated by Kitto J in Ramsay v. Larsen (1964) 111 CLR 16 at p. 27 where he said: 'The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. ...'

...

This formulation is, however, somewhat unreal in the case of the schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of 30 or more children.  What may be a useful guide applicable to a village or a small country school cannot be of direct assistance in the case of a large city or suburban school with some hundreds of children attending it.  The nature of the duty is more appropriately stated in Victoria v. Bryar (1970) 44 ALJR 174 ... 'the duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen.'"

The school authority in this case having a number of students of immature age (13 - 14 years of age) determined to have some of those students while under its control travel by bicycle from the Aspley High School to Coops Tennis Centre by roads which were clearly dangerous for children of that age riding bicycles.  In my judgment it ought to have taken steps to avoid students being exposed to the danger to which they would be subjected if they attempted to ride their bicycles between the school and the tennis centre.  In my view this applies to all the children whether or not they rode bicycles from somewhere or other to attend school.  It may very well be that many of the students who rode bicycles to school were able to do so through streets which were much safer than the route which students would have to follow travelling from the school to the tennis court area.  On the facts of this case the plaintiff's mother had, as one might expect of a concerned parent, inquired of the school authority just what the arrangement was for the plaintiff to travel from the school to the tennis centre and back again.  Her worries were put to rest by the information she was given that the children would travel there in a group under supervision of a teacher.
           On the facts of this case the school authority did fail in the obligation it owed to the plaintiff.  Some of the children obviously walked from the school to the tennis courts along footpaths.  No doubt they made the journey safely.  Apparently however children were left to their own devices and in particular the plaintiff and her school friend Connie Miles attempted to ride bicycles along and across roadways which were dangerous to cyclists. The plaintiff was injured.  Perhaps her friend, Connie Miles, was lucky that she was not thrown under the path of the third defendant's semi-trailer also.
           I am satisfied that the first defendant was guilty of negligence which was a cause of the injury suffered by the plaintiff on 11 December 1985.  The next question is whether the plaintiff was guilty of contributory negligence.
           In my view it must have been obvious to the plaintiff as a 13 year old school girl (approaching 14 years of age) that the bicycle she was riding had defective brakes and so in some circumstances would be more dangerous than a bicycle that had brakes that worked.  Upon the whole of the evidence I have come to the conclusion that the condition of the bicycle was probably a cause of the collision between the plaintiff's bicycle and that of Connie Miles who was riding in front of her.  I conclude on the balance of probabilities that the plaintiff prior to calling out to her friend, Connie, to go faster as the third defendant's semi-trailer proceeded to pass them had difficulty in keeping her bicycle under control and a cause of this difficulty was its defective brakes.  I have also come to the conclusion that the collision the plaintiff had with Connie riding the bicycle in front of her as the third defendant's semi-trailer was in the course of overtaking both of them was due to the inexperience and lack of proper care on the part of the plaintiff, and perhaps the action of Connie Miles in putting the brakes of her bicycle on when according to the plaintiff she was asked to speed up.
           The plaintiff was of an age when immature behaviour and inadequate reaction to traffic problems might be predicted.  The fact that she continued on from the high school to the scene of the accident riding down hills on a bicycle which clearly had defective brakes indicates her lack of maturity and lack of care for her own safety.  In my view she was probably induced to engage in this exercise by a degree of peer pressure exerted upon her by her friend, Connie Miles.
           The plaintiff's conduct in allowing herself to be persuaded by her girlfriend Connie to embark upon a bicycle trip from the school to the tennis courts by a route which it seems she had never previously travelled, by bicycle in any event, and her use of a strange bicycle which was too big for her and which had defective braking, all reflect the sort of immaturity which might be expected of some girls of the age of the plaintiff at the time.  It is this very immaturity which in my view ought to have been known to the education authority and which ought to have led the authority to organise the travel of the plaintiff (and for that matter her friend Connie) in a safer way by foot and under proper supervision to ensure that the plaintiff and other school children of similar age did not expose themselves to the avoidable risks to which students of that age are known to sometimes succumb.
           Dealing with the question of contributory negligence of a child, Kitto J. in McHale v. Watson (1966) 115 CLR 199 at p. 214 observed:

"It is true that contributory negligence is not a breach of legal duty;  it is only a failure to take reasonable care for one's own safety.  But I must respectfully disagree with those who think that the deficiencies of foresight and prudence that are normal during childhood are irrelevant in determining what care it is reasonable for a child to take for the safety of others though relevant in determining what care it is reasonable for a child to take for himself.  The standard is objective in contributory negligence no less than in negligence, in the sense that an ordinary capacity for care is postulated, and is notionally applied to the circumstances of the case in order to determine what a reasonable person would have done or refrained from doing, regardless of the actual capacity for foresight or prudence possessed by the individual plaintiff or defendant.  The competition as to efficiency of causation is between 'a breach of duty by the defendant and the omission on the part of the plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances' ...

It seems never to have been doubted in any reported case from Lynch v. Nurdin (1841) 1 QB 29 onwards, that contributory negligence on the part of a child consists in a failure to exercise the care reasonably to be expected of an ordinary child of the same age ... In these words, as it seems to me, the whole matter is summed up: the standard of care is objective; it is the standard to be expected of a child, meaning any ordinary child, of comparable age - the child there was sufficiently described as of tender years - not that which is to be expected of an adult; and the child's blamelessness, by the standard so determined, is treated as saving his conduct from being regarded as such a cause of his injury as to affect the question of the defendant's liability."

I refer also to Broadhurst v. Millman (1976) VR 208 in the joint judgment of Gowans and Menhennitt JJ at p. 218 dealing with the question of contributory negligence of a child, their Honours said:

"The question as to what effect the age, the particular activity the plaintiff was engaged in and the circumstances might have on the degree of care to be expected of the plaintiff was one that in our opinion should have been left to the jury's determination.  It should have been so left with a direction that the degree of care to be expected of the plaintiff was that which the jury considered to be proportionate to his age and the circumstances under examination.  It should have been pointed out that that consideration was relevant in relation to the issue as to the occurrence or otherwise of contributory negligence, and also in relation to the issue as to the apportionment to be made of the shares in the responsibility for the damage.  That would necessarily have involved in each case a comparison between the degree of care actually exercised by the plaintiff and the degree of care that he, as a boy of his years, ought to have exercised."

In the circumstances of this case in effect the plaintiff behaved in an immature and foolish way.  I am satisfied that she did this because of her age and lack of experience.  I have already found that the first defendant is responsible for the plaintiff's injury because it failed to take into account the immaturity of students of her age and the possibility that they would do silly things putting them at risk of injury because of their immaturity.  On the facts of this case the plaintiff probably succumbed to peer pressure to do something which put her at unnecessary risk. 
           When considering the question of the plaintiff's contributory negligence I take into account that she was about 13 years and 9 months of age at time of injury.  That she was an intelligent girl is clear from her school reports and indeed from the remarkable way in which she took her injury in her stride and obtained creditable results at school during a period of time when she was subjected to very many painful operations.
           Silly behaviour on the part of immature school children is not necessarily confined to children of lower intellectual standards than the average.
           I am satisfied upon the whole of the evidence that the plaintiff must have become aware of difficulty probably experienced in controlling the bicycle some distance before she reached the place of her injury. However she continued to ride the bicycle although it is interesting to note that she was really riding behind her friend Connie, whose idea the whole bicycle trip seems to have been and who apparently was leading the way to the tennis courts.  I find it difficult to apportion responsibility between the plaintiff and the first defendant because the plaintiff's injury in my judgment resulted from the sort of foolish and immature conduct which the first defendant ought to have been aware may result in the absence of any proper control and supervision of children of the plaintiff's age.
           Having said all that, however, it is my view that the plaintiff did fail to take the care for herself that ought normally to have been taken by a girl of her age when asked and/or persuaded by Connie Miles to embark upon and continue with the bicycle journey from the school to the tennis courts.
           I have come to the conclusion that the major part of the responsibility for the plaintiff's injury ought be borne by the first defendant.  The silly immature conduct on the part of the plaintiff should have been anticipated by the first defendant who knew that to travel by bicycle from the school to the tennis courts was both "hazardous" and unnecessary in view of the distance involved.  It should have taken specific precautions to avoid the occurrence of the very sort of accidental injury which the plaintiff suffered.
           I apportion responsibility between the plaintiff and the first defendant so that the plaintiff bears 25 per cent of the responsibility and the first defendant bears 75 per cent of that responsibility.
           I turn now to the quantum of the plaintiff's damages.
           There are a number of medical reports and records of damages claimed to have been sustained.
           The quantum of special damages has been agreed in the sum of $74,439.43.  It is further agreed that of that sum $12,703.00 bears interest at 6 per cent for a period of 6 years.
           Shortly after she suffered injury the plaintiff who did not lose consciousness received ambulance attention and was taken first to Prince Charles Hospital where she was resuscitated and received intravenous fluid injections.  She was then taken to Royal Brisbane Hospital where the following injuries were recorded:

1. A compound fracture of the left femur.

2. A fracture of the right femoral condyle.

3. A fracture of the right ilium with involvement of the acetabulum and a chip fracture of the left anterior superior iliac spine.

The fracture of the left femur was comminuted with exposed bone chips in the wound.  No palpable pulses were persistent in the left leg. 
           The plaintiff was taken immediately to the operating theatre where a compound scrub of the left thigh wound was performed and external fixation of the left femur was applied.  Upon examination the left femoral artery was in spasm and as a result a saphenous vein graft was applied to bypass the damaged segment of that artery.
           On 12 December 1985 the plaintiff developed a compartment syndrome in the left lower leg for which a fasciotomy was performed.  It was ascertained that the plaintiff still had poor pulses in the left leg and she returned once more to the operating theatre where her wounds were explored and a debridement of ischaemic muscle was performed.  Much of the calf muscle belly viewed through the medial fasciotomy looked viable although several areas of narcosis were discovered.  There was necrotic removal and on 14 December 1985 further necrotic muscle debridement was effected.  It was discovered that about half of the soleus muscle and approximately a quarter of the medial head of the gastrocnemius muscle was necrotic and had to be excised.
           The plaintiff was put into intensive care and for some weeks she suffered very great pain and it seemed likely that she would have to have her left leg amputated.  On 26 December 1985 after having had a number of other operations split skin grafts were applied to her left leg wounds.  The whole operation was very painful and from time to time she had the dressings changed under general anaesthetic.

           Various other operative treatments were performed and these are fully detailed in a letter from Royal Brisbane Hospital dated 28 October 1986.  She suffered a shortening of the left leg which after a couple of years was lengthened by operative treatment.  She was left with very bad scarring.  She had about 24 significant operations on her leg.  She was released from hospital on 27 March 1986 and thereafter her recovery proceeded well if slowly.
           The plaintiff's schooling one might have thought would be significantly affected by such a serious and complicated set of injuries requiring so much medical treatment.  In fact she was unable to study for the first semester exams in 1986 but thereafter did study and passed her examinations receiving good marks.  She passed her junior examination well in 1986 and then subsequently passed her final exams in 1988.  She received quite high marks and took a year off from formal study to work in a bank.  She had difficulty in performing duties which required her to stand for any length of time and she eventually attended QUT from where she recently graduated with a degree in business management.  At the present time she is employed with a bank.
           Although the very serious injuries suffered by the plaintiff did not it seems greatly impede her education, they certainly had a very significant effect on her lifestyle.  Prior to the injury she played competitive sports and she enjoyed dancing and was an outgoing pleasant girl. As a result of the injuries, the horrific scars and altered appearance of her legs she was embarrassed from time to time while at school.  She found it difficult to mix socially with people and even now suffers restrictions on physical activity and indeed social activity as the result of her scarring and permanent residual disability.
           Photographs of her scarred and misshapen lower limbs were tendered and upon trial I was given the opportunity to inspect what was depicted in the photographs.  It is clear from the photographs that were taken before she had her leg lengthened that the appearance of her legs was then quite shocking.  At the time of trial the scars were certainly very disfiguring, but they seem to have improved to some extent at least in appearance from what they were some years ago. It is not expected that they will improve further.
           They plaintiff called orthopaedic evidence from Dr Fraser who had given her a lot of treatment, from Dr Blue and Dr Gallagher. It is clear from reading those reports and the histories contained in them and the report from the Royal Brisbane Hospital that the plaintiff suffered great pain and inconvenience for years.  I indicate that I accept the histories contained in those reports and have regard to the opinions expressed in them without descending to a detailed examination of their content.  On 2 October 1990, Dr Fraser who gave her a lot of treatment for her injuries summed up the position in these words:

"The injuries have had a profound effect on this girl's life.  From the time of the accident for the ensuing four and a half years, she has had multiple operations as indicated above and extensive periods of time of hospitalisation.  There has also been the necessity for prolonged periods of time partially incapacitated on crutches and protracted periods of physiotherapy.  For a period of time she was obliged to wear a very ugly built up shoe.  The large part of the sporting and social activities that one would normally expect a teenage girl to participate in have been denied this girl during these years.  She has been left with a significant permanent partial disability ..."

In a second report of September 1991, Dr Fraser referred to deformity of both iliac bones from old healed fractures of them, a sclerosis in the roof of the right ascetablum and early osteoarthritic changes in the right hip joint.  The distal shaft of the left femur healed satisfactorily;  there were osteophytes in the tibial spines of the right knee and the bones in the left foot and ankle appeared osteoporotic.  Dr Fraser said that no further surgical treatment of the plaintiff was likely.  He said that she has been significantly disabled.  She will not be able to undertake any athletic activity and indeed will not be able to walk for protracted periods of time.  The injury to her right hip is such as to produce osteoarthritis in later life and he expressed the view that in time she will require a total hip replacement and that this hip replacement procedure will have to be repeated twice in subsequent years.  He said that at some time in her life she will require a total knee replacement.  She has been left with a stiff left ankle and nothing can be done about that.
           Dr Fraser expressed the view that her overall disability in 1991 was 15 to 20 per cent loss of efficient bodily function.  He said that due to osteoarthritis in her hip and/or knee, the disability will rise to approximately 40 per cent loss of efficient bodily function and that after joint replacement has been effected she will be left with a permanent residual loss of function of 30 per cent.  He said that he does not expect that those disabilities will shorten her life time and that with some limitations she will be able to pursue a full working career.
           Dr Blue also examined the plaintiff and in a report of 3 January 1990 set out the history of her injury and treatment for it over the years.  He commented upon the shortness of the plaintiff's left leg.  This has been corrected by operative treatments subsequent to his report.  Dr Blue commented that the plaintiff had spent almost 12 months in hospital during which time she had undergone some 21 surgical procedures.  Subsequent to the doctor's report she underwent further procedures.  He observed that the treatment she had received up until 3 January 1990 had resulted in considerable pain, discomfort and gross inconvenience.  He expressed the view that she has a present disability of 60 per cent loss of function of her left leg and he observed:

"Despite the gross instability in her left knee, I do believe that this degree of disability is unlikely to alter significantly with the passage of time, due to the fact that her overall injuries do grossly interfere with her mobility, to the extent that she is unlikely to obtain a level of activity that would produce significant aggravation of this left knee problem."

Dr Blue said that she has a permanent disability equivalent to 30 per cent loss of function of her right leg.  However, superimposed upon this permanent loss of function is a severe predisposition to increasing osteoarthritis, pain and stiffness in her right hip.  This will almost certainly require major surgery at some time in the future.  Surgery would relieve the pain but would result in a permanent disability in the order of 50 per cent loss of function of her right leg.
           I prefer the view of Dr Fraser to that of Dr Blue as to the likelihood of a replacement of the plaintiff's left knee joint.
           Dr Fraser expressed his view in terms of loss of function of the whole body while Dr Blue referred to the loss of function in each of the legs.
           Dr Fraser said that the current cost of a hip replacement is approximately $13,000.  There is a similar cost for a knee replacement operation.
           A psychological report from Mr Weston is to the effect that the plaintiff has coped extraordinarily well with the very severe injuries she suffered.  He referred to a "mild residual phobic avoidance problem" as a result of her scarring and physical appearance and said that he thought it unlikely that there would be much improvement in this respect in the future.  Having looked at the plaintiff's scars and taking into account her age and the significant impact her injuries and the treatment for them has had on her social life, I accept this opinion expressed by Mr Weston and infer that the horrible scarring on her legs will put her ill at ease with persons not of her very supportive family and will almost certainly be a matter of great importance to her.
           The plaintiff appeared in the witness box to be an attractive, intelligent young lady and her tertiary qualification indicates that it is likely that she will develop a career in which I suspect she will endeavour to excel rather than undergo the embarrassment of engaging in social activities which will be less attractive to her because of her "mild residual phobic avoidance problem".  Apart from that problem the plaintiff has not developed any depressive disturbance since the injury and she does not suffer from any post accident neurotic disturbance.  According to Mr Weston the plaintiff has an underlying strength of personality which has enabled her to deal more successfully with the injuries and scars inflicted upon her than might be the case perhaps had she a weaker personality.
           Dr Jenkins, the plastic and reconstructive surgeon who treated the plaintiff for her terrible scarring observed that the plaintiff has modified her clothing to wear long skirts and dresses to cover the scarring on her legs which is quite striking.  He expressed the opinion that she will always need to conceal her scars despite any improvement that might come with time.  The plaintiff describes pain in her scars but this pain is gradually settling. She has been left with other scarring on the leg by reason of the stripping of skin for skin grafts for application to scars on her legs.  Dr Jenkins sums up his opinion in the following words:

"Yvette Horne has demonstrated a very significant tendency towards hypertrophic scar formation.  This means that the scars are usually thick and red and very obvious for a prolonged period.  Some of her scars have faded but even those still constitute a significant aesthetic deformity.  Her appearance has improved with surgery but she still has very significant aesthetic problems particularly in her left leg.  These will be permanent and will be a constant reminder of her injury.  Miss Horne has suffered this trauma through the formative years of her life.  I think it is impossible to exaggerate the emotional trauma which she has experienced as well as the physical problems of pain associated with both the injury and with subsequent surgery.  Her life has been profoundly affected.  Her relationships with her peers and with members of the opposite sex must be affected in the future.  She will have a marked reluctance to reveal her scarred limbs.  I think her scars are unlikely to change significantly in the future.  I would not recommend any further surgery to improve her scars."

With respect to the pain, suffering, scarring and other loss of amenities of life I assess damages in the sum of $100,000.
           I apportion $60,000 of that sum to her pre-trial loss and $40,000 to post-trial loss.
           With respect to future loss by reason of having hip and knee joint replacements, I find that the plaintiff will probably have three hip joint replacements and one knee joint replacement after she is 30 years of age and before she is 65 years of age.  The present cost of each operation would be $13,000 and in respect of each operation she would lose her capacity to earn or to engage in much physical activity for about two months.  At present the loss of net income for two months would be about $3,000.  It is helpful to perform a series of calculations to assist in assessing the present value of that future loss using a 5% interest table.  Each operation at the present time therefore would cost her $16,000.  The present value of $16,000 postponed for 7 years is $11,370.88, for 15 years is $7,696.32, for 27 years is $4,285.60 and for 39 years is $2,386.40.  Those sums total $25,739.20.  I assess general damages for future loss by reason of those operations in the sum of $26,000.
           There has not been established by direct evidence any other significant future loss of earning capacity attributable to the injuries the plaintiff suffered so long ago.  However, she will have to have four operations over the next 40 years and once she has reached middle age will no doubt be less attractive as an employee because she will need a couple of months on sick leave to have significant operations performed upon her.  It must be kept in mind that even when successful operations are performed on her she will still be left with very significant permanent residual disability which will no doubt make her less attractive as an employee than she would otherwise be.  Obviously her operations will be performed when her disability has increased over time to a stage when without an operation she will be unable to function with the efficiency required of her.
           I find that the plaintiff with more experience will probably be enjoying a significantly greater earning capacity than the equivalent of $350 per week net at the present time when her age and physical disability combine to reduce that capacity.  The loss of $350 per week for 3 years is $50,750 which postponed for 37 years using 5% tables is $8,345.  The loss of $350 per week for 10 years is $143,500 which postponed for 30 years using those tables is $33,203.  On the other hand an allowance must be made for the effect of the ordinary vicissitudes of life.  I assess damages under this head at $21,000.
           Upon the evidence I am unpersuaded that the plaintiff has suffered any pre-trial loss of earnings or income attributable to her injuries.
           I will turn now to consider the plaintiff's claim for pre-trial and post-trial provision of gratuitous services by her mother, Nannette Patricia Horne and her brother, Gregory Charles Horne applying the principle in Griffiths v. Kerkemeyer (1977) 139 CLR 161 as refined in Van Gervan v. Fenton (1991-92) 175 CLR 327.
           Stated shortly, the plaintiff is entitled to the market value of gratuitous services provided to her by her mother and brother if her injury sustained in Beams Road was such that she needed those services.  Provided she can show the need for assistance given to her by her mother and brother gratuitously she is entitled to the reasonable market value of those services.
           Exhibit 12 is a statement in very great detail of various services supplied to the plaintiff by her mother from the date of injury on 11 December 1985 to either 17 or 21 July 1990.  In great detail there is a calculation of the hourly periods of service given over this period and a claim is made in respect of 6,257 hours.
           In ex.14, Gregory Charles Horne provides particulars of services from 11 December 1985 to 7 March 1989.  His services are particularised on an hourly basis (even down sometimes to one half hour per day) and it is asserted that he provided her with care for a total of 2,457.75 hours.
           In respect of the services provided by her mother (i.e. over 6,257 hours) the plaintiff claims $93,855, being "the reasonable cost of personal nursing and domestic services provided by the plaintiff's mother during the hospitalisation and subsequent convalescence.  The plaintiff claims this sum on the basis Van Gervan v. Fenton.  The full domestic rate is $15 per hour.  Hence her claim is made on the basis of 6,257 hours at the rate of $15 per hour.
           With respect to the services provided by Gregory Charles Horne (during 2,457.75 hours) the plaintiff claims $36,866.25 on the same basis as the claim by the plaintiff's mother.  In respect of those services, it is asserted the full domestic rate is $15 per hour.  Hence the plaintiff's claim is made on the basis of 2,457.75 hours at the rate of $15 per hour.
           Upon trial there was tendered by consent ex. 11 which is a letter from Domicare - "The In-Home Care Specialist".  This letter replied to a letter from the plaintiff's solicitors of 22 December 1994 and advised of various rates from 11 December 1985 to the date of the letter.  It would be unhelpful for me to set out the content of that letter. Suffice it to say it purports to trace the costs of "domestic assistance" over approximately a 9 year period from 11 December 1985 to January 1995.  The costs are split up into costs per hour "to the carer" and "costs per visit administration costs". Thus over the years there was a charge for administration costs related to each visit that increased from $3 to $5 in 1989.  From February 1992 to May 1994, the administration costs were $3 per visit.  The scale of costs distinguishes between "domestic assistance" and "domestic care" and "personal hygiene care".
           The hourly cost payable to the "carer" increased from $6 per hour in December 1985 to $9.50 per hour in about mid 1994.
           There appears to be no schedule of costs prior to mid 1994 in respect of either "domestic care" or "personal hygiene care" prior to 1 June 1994.  Attached to ex. 11 is a duty list setting forth the duties of people described as "domestic carers" and also for people described as "personal care attendant".
           It is clear that the duty of a domestic carer is really to perform household duties and to provide "companionship" to the person being cared for.
           With respect to personal care attendant, the duties include all those imposed upon domestic carers and as well other duties which would perhaps be consistent with those of a nurse's aide.  Duty number 8 is expressed "assisting in exercise as outlined by doctor or physiotherapist". Number 9 is "transporting invalided or disabled persons and number 13 "attending to simple wound dressings".
           I treat ex. 11 as evidence of the truth and accuracy of its content but not as evidence that the plaintiff ever needed any of the care, the periodical cost of which is contained in the letter.  I treat the letter as having been tendered merely to avoid calling the writer of it.  It can have no relevance or very little relevance in any event in the absence of evidence to show that the plaintiff needed care which was gratuitously provided by her mother and brother between the time of her injury on 11 December 1985 and July 1990.
           In my view, little persuasive or reliable evidence was led in the plaintiff's case directed to show that the services rendered to her by her mother and brother were reasonably necessary or reasonably needed by her.
           The plaintiff herself gave no evidence concerning any need for all the services particularised.
           From the evidence of the plaintiff's mother and brother, the inference may clearly be drawn that they took the view when they provided the services that they were reasonably needed by the plaintiff for her care and treatment during the time that the services were rendered.
           There is no medical evidence from any of the doctors to demonstrate or from which it might be inferred that all the services allegedly rendered by the mother and brother of the plaintiff were reasonably necessary for the treatment and amelioration of her physical injuries.
           There was no evidence called from nurses or physiotherapists that such treatment or services were reasonably required.
           Having regard to the nature of some of the services rendered I am prepared to infer that they were reasonably needed by the plaintiff, in the absence of any expert evidence to that effect.  I am prepared to infer that she needed assistance, both before and after she returned to school, connected with her bathing and toilet needs, dressing wounds and perhaps changing clothes.  I am also prepared to infer that she reasonably needed transport to and from the school and to and from doctors and physiotherapists.
           A significant part of the claim for services is a claim by the plaintiff's mother for services she performed when she visited the hospital in which the plaintiff was a patient between 11 December 1985 and 27 March 1986 when she says that she provided 544 hours of services.  With respect to the same period the plaintiff's brother says that he provided 306.75 hours of service.  That amounts to a claim for 850.75 hours of services at the rate of $15 per hour.  All told that claim amounts to $12,761.25.

           There is no medical evidence to support the plaintiff's need for such services while she was in the hospital.  The plaintiff's mother said that: "The staff at the hospital appeared to appreciate my assistance."  In the course of her brother's statement he observed:

"We found that the nurses tended to give Yvette less attention because they knew that my mother and I were usually present, therefore we would generally look after her and only call them if assistance was required."

He added: "As my mother spent most of her time at the hospital I was required to do a lot more of the housework and general chores at home."
           The plaintiff's brother states in ex. 14 that both he and his mother were less than satisfied with the treatment the plaintiff was receiving in hospital.  There was no effort made to call medical evidence or other evidence from the hospital in which the plaintiff was a patient for so long that the services said to have been given to her were reasonably necessary.
           The plaintiff did not contend that the attendance of her mother and brother were "reasonably necessary for the alleviation of her condition", but instead pursued a claim under Griffiths v. Kerkemeyer .  Authorities indicate the advantage of expert  medical evidence on this point.  I refer to O'Connell v. Brisbane City Council (1966) QWN 26, Cook v. Wright (1967) NZLR 1034, Curator of Estates of Deceased Persons v. Fernandez (1977) 16 ALR 445 (NT), and Hunter v. Scott (1963) Qd R 77. The matter is considered in Luntz Assessment of Damages for Personal Injury and Death, 3 ed, at pp. 220 et seq.
           Stated shortly, I am unpersuaded on the whole of the evidence that the plaintiff did need the services apparently rendered to her by her mother and brother while she was in the Royal Brisbane Hospital from 11 December 1985 until 27 March 1986.  I am not persuaded therefore that a claim under Griffiths v. Kerkemeyer has been established with respect to that period.
           On the other hand there is ample evidence from the plaintiff and her mother and brother and from doctors who treated her at the material time that the plaintiff was very seriously injured and in very much pain and that for some time it was thought that she might have to have her leg amputated.  This experience must have been a terrible one for a 13 year old girl and it is plain on the evidence that there were firm bonds between the plaintiff and her mother and brother and I am sure that they were intent upon giving whatever assistance, comfort and counselling they could give - whether or not it could be established by medical evidence and/or nursing evidence that the plaintiff really "needed" that support.  When the plaintiff was discharged from hospital she had just turned 14 years of age - on 24 March 1986.  Having regard to her age and the very severe physical and psychological trauma she suffered as the result of the accident, even in the absence of medical or other evidence to support the proposition, I am prepared to infer that for at least the months of December, January and February of her hospitalisation the visits of her mother and brother from time to time were necessary for the alleviation of her condition.  This matter has not been debated in the case and in the absence of evidence on the point I am disinclined to accept that the presence of the plaintiff's mother and brother at the hospital apparently together for over 300 hours was reasonably necessary for the alleviation of the plaintiff's condition.  Neither am I persuaded that the costs of domestic assistance provided by Domicare at any time from 11 December 1985 to 9 January 1995 is of any assistance in determining the reasonable costs the mother and brother of the plaintiff incurred so that at least one of them was with the plaintiff in that period.  The plaintiff may be able to recover costs incurred in the attendance of close relatives which is "of some importance in the alleviation of the plaintiff's condition but not merely attendances to fulfil a desire of the relative to be close to a loved one" - see Wilson v. McLeay (1961) 106 CLR 523 at pp 527 and 528.
           Upon the assumption that at least one of the plaintiff's mother and brother attended her during the whole of the period of her first hospitalisation from 11 December 1985 to 1 March 1986 - that is 80 trips - I propose to assume it was reasonably necessary to make those trips to the hospital during this period of time and that the reasonable costs incurred by whoever was making the trip was $15.  With respect to this period of the plaintiff's hospitalisation therefore I assess damages on the principle of Wilson v. McLeay (supra) in the sum of $1,200.
           The plaintiff's mother also claims for services rendered to the plaintiff for 355 hours - upon her re-admission to the Royal Brisbane Hospital on 24 April 1988 for her femur lengthening operation.  This was a period of 10 weeks.  By this time the plaintiff was 16 years of age.  There is no evidence that any services rendered to the plaintiff by her mother and/or brother during that 10 week period were needed and I am unpersuaded that by the time the plaintiff entered hospital at the end of April 1988 the daily attendance upon her by members of her family was needed for the alleviation of her physical condition.  I infer that perhaps one attendance per day for 70 days may have alleviated any unhappiness or psychological pressure that the hospitalisation caused to the plaintiff.  I have some hesitation in drawing this inference in the absence of medical or nursing evidence.  However, the leg lengthening operation must have been a traumatic experience for the plaintiff who was only just 16 years of age and I am prepared to draw the inference that her condition was alleviated by a daily visit.  Again, I would allow travelling expenses in the sum of $15 per visit for 70 visits which amounts to $1,050.
           The plaintiff apparently had other admissions to hospital -
           The Mater Private Hospital on 6 October 1986 for two days.
           The Holy Spirit Hospital on 10 February 1988 for three days.
           On 30 August 1989 the plaintiff entered a hospital for an unspecified time and she had a steel plate removed from her leg.  On 3 July 1990 the plaintiff returned to hospital for further plastic surgery.
           Having regard to the age of the plaintiff on these later admissions to hospital and the absence of any evidence which is capable of supporting the inference that any hospital visits were necessary to alleviate her condition, I do not assess any damages on the principle of Wilson v. McLeay (supra), with respect to those later hospital visits.
           In the absence of any expert evidence as to the plaintiff's need for the services rendered by the plaintiff's mother and her brother to her while she was out of hospital and recuperating at home and attending school, I am not prepared to accept that all the hours in respect of which claims are made were spent providing "necessary services", even if they accurately record the time devoted to the plaintiff, and I have some reservations as to their accuracy.  I take the view that it is pointless to try to make a precise finding as to the hours of care given by the plaintiff's mother and brother which could be described as reasonably necessary for her care.  Whatever hours were reasonably spent providing care and assistance to the plaintiff, I find the list of duties and rates of payment contained in ex. 11 of little assistance in determining what the market value of those services would be.
           In para. 13 of the statement of the plaintiff's brother (ex. 14) he states:

"13. As outlined in the attached summary, I commenced employment on the 7th of August 1986.  I worked three days per week which reduced the amount of available time I had to provide care and assistance to Yvette."

In para. 14 dealing with the period after the discharge of the plaintiff from the Mater Private Hospital, the plaintiff's brother said, inter alia:

"I continued to provide the same care and assistance as outlined above, following her discharge from the Royal Brisbane Hospital.  On the 26th of October 1986, I commenced employment four days a week, which further reduced the amount of time available to give Yvette care and assistance."

At para. 18 his statement reads:

"18. I continued to provide the care and assistance outlined above, including assistance with mobility.  On the 18th of October 1988, I commenced full time employment, which reduced the amount of available time that I had to provide care and attention to Yvette. On the 7th of March 1989, I moved out of home at which time the care and assistance which I provided Yvette had largely ceased."

These observations of the plaintiff's brother cause me to have very significant reservations about whether the hours he says he spent giving her care and providing services to her were dictated by her need for them rather than by the time he had on his hands which he was prepared to devote to his sister, for whom no doubt he had a brotherly regard.
           I am persuaded on the whole of the evidence that the plaintiff's mother and brother each provided services to the plaintiff between the date of her injury and July 1990 which were reasonably necessary and reasonably required by the plaintiff because of her injuries.  I am unpersuaded that the records of hours spent which bear all the hallmarks of estimates rather than of records accurately set forth the hours actually devoted by the plaintiff's mother and brother in the provision of services which were reasonably necessary. Such necessary services it seems to me would have been most needed upon her initial discharge from Royal Brisbane Hospital in March 1986.  It is clear that she then needed assistance in connection with anything that required her to walk, stand or engage in many sorts of physical activity.  The probability is that by the time she went to school, although still needing assistance, she had improved significantly from her condition in March 1986.  I am prepared to treat the time spent driving the plaintiff to school, and for medical attention and for physiotherapy as meeting a reasonable need.  The problem I have is  to determine what the market value was of such services at the time.  The needed services which seem to have been provided to the plaintiff can only be set within an hourly rate frame with difficulty.  I am unpersuaded that those hours of gratuitous service which were in fact reasonably necessary, had a market value of anything like $15 per hour.  In the absence of medical evidence as to the need for gratuitous services rendered to the plaintiff and the length of time that could reasonably have been spent on giving those services and in the absence of more helpful information than that contained in ex. 11, I conclude that for services provided between March 1986 and July 1990 - a period of a little over 5 years - the plaintiff had a need for gratuitous services provided by her mother and brother which all told amounted to 3 hours per day for say 1,900 days which amounts to 5,700 hours.  I allow $5 per hour for that time.  That results in a figure of $28,500.
           I have necessarily adopted a very broad brush approach on this assessment having regard the state of the evidence.  Obviously in March 1986 the plaintiff would have required assistance for longer than 3 hours per day.  On the other hand by 1990 it is my view on the evidence and having regard to the medical reports and the hours spent at physiotherapists, that she would need less than 3 hours per day.
           There is nothing in the evidence which suggests that the plaintiff will require any further gratuitous services from her mother, brother or anybody else.  Obviously she may require some assistance after she has had hip and knee replacement operations.  There is absolutely no evidence which would justify any assessment on the basis of Griffith v. Kerkemeyer in respect of those operations to take place so far in the future.  It is clear that the plaintiff now needs no such gratuitous service.  In ex. 10 in her curriculum vitae which was prepared presumably for the purpose of obtaining employment it is observed:

"I enjoy travelling.  Spent two weeks cruising the South Pacific in mid 1992 and undertook an 11 week tour of  USA and Canada July to September 1993. "

All told therefore I assess damages for the plaintiff in the following sums:

1. Agreed Special Damages  $74,439.43

   Agreed Interest on $12,703 at 6% p.a.for 6 years  $4,573.08

1. Pain, Suffering and Loss of Amenities of Life  $100,000.00

   Interest pre-trial $60,000 at 2% for 9 years  $10,800.00

1. Present value of Costs and ncome Lost by Reason of Future Operations           $26,000.00

1. Loss of Future Earning Capacity  $21,000.00

1. Griffiths v. Kerkemeyer (Pre-trial)  $28,500.00
              Interest at 2% p.a. for 9 years  $5,130.00

1. Wilson v. McLeay (December 1985 - March 1986)  $1,200.00
              Interest at 2% p.a. for 8.5 years  $204.00
              Wilson v. McLeay (24 April 1988 for 10 weeks)  $1,050.00
              Interest at 2% p.a. for 6.5 years  $136.50
     ________
     $273,003.01
   Less Apportionment for contributory negligence of 25%

Judgment for the Plaintiff against the first defendant for $204,774.75.

Judgment for the second and third defendant against the plaintiff.

I will hear argument on the question of costs.