Schofield v Hopman

Case [2017] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

Schofield v Hopman & Anor [2017] QSC 297

PARTIES:

PETER MICHAEL SCHOFIELD

(Plaintiff)

v

GARY HOPMAN

(First Defendant)

AND

QBE INSURANCE (AUSTRALIA) LIMITED (ABN: 78 003 191 035)
(Second Defendant)

FILE NO/S:

S8 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

8 December 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

12, 13, 14, 21, 22 September 2017.

JUDGE:

McMeekin J

ORDER:

Judgment for the defendant.  1.   

Submissions to be provided by 4pm Thursday 14 December 2017. 2.   

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – where a collision occurred – where the plaintiff was travelling in a more or less westerly direction along a single lane of bitumen between Windora and Quilpie – where the plaintiff was riding on a Harley Davidson motorcycle – where the bitumen is wide enough for a single vehicle – where the defendant was travelling more or less in an easterly direction towing a caravan – where because of the narrowness of the bitumen strip the practise on the road is for motorists to move their left hand tyres off the bitumen and so share the centre strip – where the road rules require this approach – where the plaintiff alleges the defendant did not move their tyres off the bitumen – where the plaintiff alleges the defendant remained at all times in the centre of the roadway – whether or not the defendant was negligent – whether  the defendant was as far left as practicable

EVIDENCE – ADMISSIBILITY – HEARSAY –

EXCEPTIONS: FIRST HAND HEARSAY – where the plaintiff seeks the admission of an out of court statement -  where the defendant objects to the admission of the evidence as being a hearsay statement and not within any recognised exception – where the plaintiff supports its reception as coming within the res gestae exception – whether the statement is admissible – whether the statement falls within the res gestae exception

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – EXPENSE FLOWING FROM PLAINTIFF’S INABILITY TO WORK – PARTICULAR CASES – where the plaintiff has not worked in employment since the accident – where the plaintiff’s efforts have been concentrated on a bed and breakfast business – where the bed and breakfast business has not been shown to be a profitable venture – where the plaintiff contends that he could not maintain the busines after the accident – whether the services provided for maintaining the business are gratuitous services within s 59 Civil Liability Act 2003 (Qld) – whether it is necessary for the plaintiff to show that he or she would have sustained a loss which is otherwise compensable, but for the provision of the services in question

Civil Liability Act 2003 (Qld), s 59
Civil Liability Regulation 2014 (Qld)
Transport Operation (Road Use Management – Road Rules) Regulations 2009…

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AGLC
Schofield v Hopman [2017] QSC 297
Case
[2017] QSC 297
Decision Date

CaseChat Overview and Summary

In the case of Schofield v Hopman, the plaintiff, Schofield, alleged negligence against the defendant, Hopman, in relation to a road accident. The incident occurred on a single lane bitumen road between Windora and Quilpie, where Schofield was travelling west on a Harley Davidson motorcycle and Hopman was driving east towing a caravan. Schofield claimed that Hopman was negligent in not moving their left hand tyres off the bitumen and remaining in the centre of the road, contrary to the road rules. The court was required to determine whether Hopman was negligent and whether they were as far left as practicable under the circumstances. Additionally, the court had to consider the admissibility of a hearsay statement provided by the plaintiff, which Hopman objected to as it was not within any recognised exception. Schofield argued that the statement fell within the res gestae exception, while Hopman contested this.

Regarding the evidence, the court examined whether the hearsay statement was admissible under the res gestae exception. The court also considered the plaintiff's claim for damages, specifically the loss of earnings and earning capacity, as well as expenses flowing from the plaintiff's inability to work. Schofield argued that the services provided for maintaining a bed and breakfast business were gratuitous services within s 59 of the Civil Liability Act 2003 (Qld), and that the risk of loss to the business was a relevant need for the services. Hopman argued that the Griffiths principle did not extend to the care provided to pets, and that the loss of a hobby or pet care was more appropriately addressed in general damages or considered too remote a damage to be laid at the tortfeasor's door.

The court found that the plaintiff's claim for damages was not substantiated, as there was no evidence of the existence or extent of the risk to the bed and breakfast business. The court also held that the hearsay statement was not admissible under the res gestae exception, as it did not fall within the recognised exception. Furthermore, the court found that the Griffiths principle did not extend to the care provided to pets or a hobby, and that such losses were more appropriately addressed in general damages or considered too remote a damage to be laid at the tortfeasor's door. Consequently, the court ruled in favour of the defendant, Hopman, and ordered that submissions be provided by 4pm Thursday 14 December 2017.

Orders

Orders of the court

Judgment for the defendant. 1.

Submissions to be provided by 4pm Thursday 14 December 2017. 2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mackenzie J’s reasoning was to the same effect. His Honour said in Clement:“It was submitted by the applicant that, if services were to be treated as gratuitous services within the meaning of s 59, the services were not “necessary”. The learned trial judge found that they were. There was evidence that, if the work of the kind gratuitously done was not performed, the respondent’s plantation would be at risk of becoming less productive and therefore less profitable. In the circumstances it was open to find that the work was “necessary” if it falls within the description “gratuitous services” in s 59.”[127][127][2007] 2 Qd R 99 at [67]. My emphasis. On this reasoning the necessity for the services arose because of the risk of loss. Without evidence of the existence or extent of that risk it is not possible to determine that there was any relevant need for the services. The pre-condition is not met. Counsel for the defendant argued that the Griffiths principle did not extend to the care provided to pets. It certainly involves an extension of the Griffiths principle. No authority was cited which authorised such an extension. Counsel for the defendant cited Geaghan v D’Aubert[128] as express authority against the extension. The decision pre-dated CSR Ltd v Eddy[129] but is plainly in conformity with the reasoning there. Stein JA said:“I do not believe that Griffiths v Kerkemeyer, or any of its extensions, includes the provision of care to an injured persons' pets or a hobby. The cases have accepted domestic care at home, in the garden and shopping. But counsel has found no case which extends domestic assistance to the care of domestic pets or the retention of a hobby.It might be that no relevant 'need' of a plaintiff to the provision of such a service as pet care or a hobby has been established. Alternatively, it may be that if a plaintiff was unable to look after a pet, or lost a hobby, that loss more appropriately sounded in general damages. It may also be that such a loss may be seen as too remote a damage to be laid at a defendant tortfeasor's door.Some of these types of considerations are inherent in the discussion of Mason P in Sullivan v Gordon (at p322 - p324). Mason P stressed the exceptional nature of Griffiths v Kerkemeyer and the difficulty of recognising what 'needs' of a plaintiff are to be included, as well as their proper limits.While agreeing with Beazley JA, Mason P concluded by saying [at para14]:Nevertheless, it may be necessary to consider whether it is always reasonable to lay at the tortfeasor's door the cost of care for children born after the injury. Pure logic is not the only matter at play in this difficult area of law.In my view, any consideration of an extension of the categories of needs under Griffiths v Kerkemeyer should be carefully evaluated, as for example in Sullivan v Gordon and Sturch v Willmott.Whichever way it is put, on a 'needs' basis, general damages or remoteness, it seems to me that Griffiths v Kerkemeyer does not extend to a plaintiff's hobby and his Honour was entitled to reject the care of the animals on that basis. Nor do I believe that it would be appropriate to extend Griffiths v Kerkemeyer to cover the care of animals kept as a hobby.”[130][128] [2002] NSWCA 260.[129] (2005) 226 CLR 1.[130] At [61]-[66]. Citations omitted.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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