Lane v Lane

[1992] QCA 385

IN THE COURT OF APPEAL

[1992] QCA 385

SUPREME COURT OF QUEENSLAND

No. CA117 of 1992

Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

BETWEEN:

JOHN LAWRENCE LANE

(Plaintiff)

Respondent

- and -

ROY PETER LANE

(First Defendant)

Appellant

- and -

COMMISSIONER FOR MAIN ROADS

(Second Defendant)

Appellant

Mr Justice Davies

Mr Justice McPherson Mr Justice Moynihan

Judgment of the Court delivered the
13th day of November, 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. CA117 of 1992

Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

BETWEEN:

JOHN LAWRENCE LANE

(Plaintiff)

Respondent

- and -

ROY PETER LANE

(First Defendant)

Appellant

- and -

COMMISSIONER FOR MAIN ROADS

(Second Defendant)

Appellant

JUDGMENT - THE COURT

Delivered the day of , 1992

MINUTE OF ORDER:	Appeal dismissed Amount of judgment reduced by $3,500 to reflect the acknowledged error Appellant to pay the Respondent's costs of the appeal to be taxed
CATCHWORDS:	Appeal from refusal to find respondent contributorily negligent in failing to wear seat belt - whether evidence established respondent's injuries would have been different had seatbelt been worn
Counsel:	K Copley QC ]
M Grant-Taylor  ] for appellant
K Cullinane QC  ]
C White  ] for respondent
Solicitors:	Heiser Bayly & Mortensen for applicant Nehmer Davenport Doan McKee for respondent
Hearing dates:	24 September, 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 117 of 1992

Before the Court of Appeal

Mr Justice Davies
Mr Justice McPherson

Mr Justice Moynihan

BETWEEN:

JOHN LAWRENCE LANE

(Plaintiff)

Respondent

- and -

ROY PETER LANE

(First Defendant)

Appellant

- and -

COMMISSIONER FOR MAIN ROADS

(Second Defendant)

Appellant

JUDGMENT - THE COURT

Delivered the day of , 1992

The respondent, John Lawrence Lane suffered complete tetraplegia below the C5 level as a

result of the motor vehicle in which he was travelling as a passenger rolling over while travelling at

speed.

There was no real issue at the trial with respect to liability except as to the respondent's contributory negligence in not wearing a seat belt. This appeal is against the trial Judge's refusal to find contributory negligence against the respondent in that respect and in respect of the quantum of

damages awarded the respondent.

The trial Judge found that he was not wearing a seat belt although one was available. He

declined to find that he would not have sustained an injury of the kind he suffered, or that the

seriousness of his injury would have been diminished, had he been wearing a seat belt.

The evidence bearing on the point was essentially that of an engineer named King who was

accepted as appropriately qualified to give the evidence he tendered and whose evidence was

accepted by the trial Judge. This court was taken to various parts of King's evidence. Put at its

highest and bearing in mind the onus of proof in respect of contributory negligence, King's evidence

went no further than that he was not able to say whether the respondent's injury would have been

the same or different had he been wearing a seat belt. The appeal in respect of the trial Judge's

rejecting contributory negligence on the part of the respondent must therefore fail.

The trial Judge awarded $1,977,375 damages. There is no dispute that this must be

adjusted to reflect the fact that the component constituting damage for future additional household

maintenance and associated costs was incorrectly included as $45,000 when the ultimate award was

calculated, rather than the $42,500 derived in the reasons for judgment dealing with that aspect of

the claim.

In the grounds of appeal there is complaint about the amounts awarded for past and future

attendant care. There was a complaint about the allowance of interest at the rate of 3 rather than

2% per annum in respect of past general damages. No error in the exercise of the trial Judge's

discretion has been demonstrated in that respect. It was also contended that the award was

manifestly excessive.

The respondent was born on 2 December, 1966 and suffered his injury on 10 May, 1985.

He was approaching 26 at trial. Economic loss was assessed based on loss of a capacity to earn as

a stockman or station hand, although it was found that there was "a real contingency" that the respondent could have done better, at least from time to time. There was really no attack on the

findings sustaining the trial Judge's conclusions as to economic loss past and present, and it is difficult

to see that there could have been. They were plainly open on the evidence. The basis on which the

economic loss component was assessed, however, provides a useful insight into the respondent's

educational and other qualifications. There was also evidence that the respondent enjoyed an active

indoor life.

$137,000 was allowed for the cost of care up to trial, together with $43,155 interest on that

sum. The cost of future care was assessed at $995,000,000. The respondent was discharged from

the spinal unit at the Princess Alexandra Hospital in December, 1985 and was cared for by

members of his immediate family to August, 1987, apart from some months spent in rehabilitation

and care units. From August, 1987 he was cared for by his mother and his now wife, Tania Maree,

who he married in December, 1987, and who has cared for him "basically single-handed" ever

since.

The fact that the respondent is able to perform some rudimentary activities and that he is

able to be left occasionally for short periods of time does not detract from the fact that he is totally

dependent on others for every aspect of his daily living and well-being. It is true, for example, that

he is able to feed himself, but that involves using a fork and spoon in a palmer pocket, a special plate

and a non-slip mat. It is true that he is able to use an electric typewriter and operate a telephone.

To do so, however, his arms are in splints and he uses a typing stick in a palmer pocket to operate a

press-button telephone which he can answer in the hands-free mode.

The respondent must be supervised at night, for example to make adjustments in respect to

alterations of his temperature. He is unable to wipe his nose, scratch his chin or do anything of that

kind, and is prone to suffer from spasms, which means that he cannot be left unattended at night or

left alone for any significant periods. When his wife does have to leave him for essential purposes,

she telephones regularly to ensure that he is alright, or arranges for someone to be there or to call in.
The respondent goes on outings, particularly to church activities, with his wife, but would be

totally unable to do so unless she or somebody else prepared him and accompanied him there or

back. Outings require a degree of planning for the purpose of identifying, for example, whether

there is suitable wheelchair access and whether the manual or electric wheelchair will have to be

used. As has been mentioned, the respondent has difficulty stabilising body temperature and is most

comfortable in air-conditioned surroundings.

There is a considerable body of evidence as to the activity on a 24-hour basis involved in

the care of the respondent. As has been said, this is provided by the respondent's wife. She was

born on 8 May, 1968 and having left school, was employed as a check-out operator shop-assistant

in a supermarket until she went to Townsville in August of 1987 to assist in taking care of the

respondent.

Her own health is not good - she suffers from eczema and osteoarthritis. The former

condition is probably exacerbated by the stress of caring for the respondent, and she has been

hospitalised with it on occasion. She has had cortisone injections for the trouble with her right

shoulder, which is exacerbated by the use of the manual hoist necessary to manoeuvre the

respondent. These things are mentioned because if the respondent's wife is unable to care for him,

then he will have to be institutionalised. The damages included a sum for the probable cost of future

hospitalisation and no specific complaint was made about it.

For the purpose of arriving at the damages for past attendant care the trial Judge accepted

estimates of 8½ hours a day for what was described as hands-on care on the basis of a detailed

dissection of what was involved provided for by the evidence not least of the respondent's wife. He

concluded that for the balance of the time the respondent should have had full time care. The

"hands-on" care, as distinct from attendance and watching, for the period up to trial worked out at

$134,477 of the total of $137,000 allowed.

Some elements of the dissection of the hands-on care were the subject of criticism and it
was said that the number of hours arrived at included some components for what was described as

companion care which was allowed at a different rate. Really, however, nothing of any

consequence has been made out to justify interfering with His Honour's conclusions. The evidence

founding his conclusions was explicit and detailed and it was quite open to him to accept it - as he

did.

So far as future care is concerned, the claim was advanced on the basis of the going rate for

hands-on care and one half of the going rate for companion care. His Honour was entitled, as he

did, to conclude that in the circumstances the latter component of the claim was conservative. The

respondent's life expectancy was somewhat reduced but was still significant.

As has been said, the main criticism of the damages awarded was directed to the

components for past and future care. No error has been demonstrated in any of the components.

Absent that and having regard to the grievous nature of the respondent's injuries and their

devastating consequences, it cannot be said that the total award was manifestly excessive.

The amount of the judgment should be reduced by $3,500 to reflect the acknowledged

error and the appeal should be dismissed. The appellant should pay the respondent's costs of the

appeal to be taxed.