Livingstone Shire Council v Crombie

[1999] QCA 410

99.410

COURT OF APPEAL

McPHERSON JA

CA No 7462 of 1999

THE COUNCIL OF THE SHIRE OF LIVINGSTONE	Appellant
and
TERRENCE BEDFORD CROMBIE	First Respondent
and
STATE OF QUEENSLAND	Second Respondent

BRISBANE
..DATE 23/09/99
230999 T5/LM18 M/T COA235/99
HIS HONOUR: This is an application for a stay pending
appeal of proceedings on a judgment for damages for
personal injuries that was given in the District Court at
Rockhampton on 20 July 1999. The amount awarded by the
judgment was some $67,000 after it had been slightly
amended upwards a month or so after the date I mentioned.

Some $27,000 of that sum will, it seems, fall to be repaid to the State of Queensland to reimburse it for hospital expenses which were incurred in treating the plaintiff after the injury occurred.

The plaintiff, who is of course the respondent to these
proceedings, is a man who was born in 1934, and he is
therefore now some 65 years of age. He is presently not
in good health at all. A report dated yesterday from Dr
Julian Gregory at Yeppoon says that the plaintiff's life
expectancy is likely to be only several months or possibly
even weeks. He has chronic emphysema and he is
permanently on oxygen.

As a result of the injury sustained in October 1995, that is the injury giving rise to the action with which we are concerned, he was to a large extent immobilised and he now lives in an elderly people's home. From what he says he resides in a single room and is very unhappy living under those conditions.

The action arose out of the plaintiff's having fallen on
or about the footpath or some such paved area in Yeppoon.
230999 T5/LM18 M/T COA235/99

He broke his leg and, perhaps unexpectedly, went into a

steady decline to the condition in which he now is. It
appears that, through being bedridden for so long, he
suffered muscle wastage and other problems which have
progressively deteriorated.

The case, so far as it is relevant for me to go into it, appears to revolve around the question of whether or not it was the defendant council or some other unknown and unidentified person who caused the footpath to be in the condition in which the plaintiff fell.

The judge made a finding that appears to me to be based on matters of credibility on that issue, and it may very well be a difficult appeal to run from the point of view of the defendant if indeed the matter for the Court to consider

is whether that credibility finding should be set aside.

Reference has been made to J C Scott Constructions and

statements in it to the effect that a plaintiff is prima
facie entitled to the fruits of his judgment
notwithstanding an appeal. It may be that that decision,
which was given some years ago, has now to some extent
been bypassed. I notice that in one of the recent
decisions of this Court, in which I participated as a
Judge of Appeal, it was said that the question of whether
or not a stay should be granted in circumstances like this

turns on whether or not that is the appropriate course to

take. See Nand v. Croney (Appeal

No 7315 of 1998). The expression "appropriate", of
230999 T6/JB M/T COA235/99
course, is very wide and certainly leaves the matter to
the almost unfettered discretion of the tribunal that is

asked to consider a stay.

It may be noticed, however, that in that case there was a
reference to a decision of the Court of Appeal in New
South Wales in Alexander v. Cambridge Credit Corporation
(1985)
2 New South Wales Law Reports 685 in which some attention
was given to the relevance of insurance as regards the
defendant in that case. I gather that that is so in this,
so that the remarks that were identified there may be of

equal application to the present case.

It was said there that it was not at all unusual for
conditions to be imposed for the payment of part of a
verdict pending appeal in the knowledge that this part
will be paid by the insurer of the defendant. It is right
to add that the Court said that such orders are not
normally made where liability is seriously in dispute as
between the parties or where liability to indemnify is

disputed by the insurer.

The question of liability in the present appeal is one on
which I have already made comments which I need not
repeat; but, although it is not the function of the judge
on an application like this to pass, as it were, a
premature judgment or prediction about the outcome of the
appeal, it does not seem to me that this is in the
230999 T6/JB M/T COA235/99
category of appeals of which one can say that it has good
chances of success.

The other factor which naturally operates on my mind is that the plaintiff is elderly, and he has less time left in this life than perhaps many other persons of that age.

He should not have to wait out his remaining time on

earth before he receives compensation for the injury done
at a date so relatively long ago now.

From what I understand to be the position in the Court of Appeal, the delay in hearing civil appeals, once they are set down, is of the order of 12 months and, as I have already said, there is a medical report which suggests that the plaintiff is a person with a relatively short life expectancy, measured in months or perhaps even only weeks.

That raises another factor to which Mr Hack, on behalf of
the plaintiff, addressed some remarks, that is to say that
it is obvious that a plaintiff, who is in the condition
that this unfortunate individual is presently suffering,
is not likely to be in a position to dissipate the money,
even if he receives it, in a very short time. He has
neither the ability nor, I suppose, the motive to spend it
on pursuits of the kind that many younger and fitter men

might be induced to indulge in.

In the end, the evidence is not sufficient to persuade me
230999 T6/JB M/T COA235/99
that the applicant is entitled to a stay in a case like
this. As a matter of caution, however, and bearing in
mind the fact that some $27,000 or so will have to be
repaid to the State health system, it seems to me that
sufficient justice would be done to parties on both sides
if I ordered a stay of enforcement of the judgment except
as to an amount of $30,000.

I think, too, that in case - and I consider the possibility most unlikely - some further evidence becomes available to the defendant which might persuade me or another Judge to take a different view of the matter in the future, it would be right to adjourn the application which is now before me to a date to be fixed.

I think, too, that the recent practice of the Court suggests that perhaps unless the application is dismissed outright, the appropriate order in these cases is one that leaves the costs to be costs in the appeal.

Those statements of the orders I am prepared to make are
in general form and, if counsel care to do so, they may
prefer to reduce those general forms of order to something
more formal which I can initial or sign in due course.

Liberty is granted to each party to apply.

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