Scrase v Jarvis - [1998] QSC 49

IN THE SUPREME COURT

OF QUEENSLAND

ACTION NO. 6450 of 1997
-and-
ACTION NO. 359 of 1998

Brisbane

Before Mr Justice Ambrose

[Scrase v Jarvis & Ors]

BETWEEN:
JEFFREY LAURENCE SCRASE

(Plaintiff) (Action 6450 of 1997)

AND:
CAROL ANNE SCRASE

(Plaintiff) (Action 359 of 1998)

AND:
HENRY JAMES JARVIS

(First Defendant)

AND:
SURFSIDE BUS LINES PTY. LTD.

(Second Defendant)

AND:
KEVIN JOHN LYNCH

(Third Defendant)

AND:
NZI INSURANCE AUSTRALIAN LTD

(Third Party)

AND:
ZURICH AUSTRALIAN INSURANCE LTD

(Second Third Party)

AND:
MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

(Third Third Party)

REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 3 April 1998

CATCHWORDS: NEGLIGENCE - duty of care - children in care of bus driver - reasonable foreseeability - proximity - causation - injury to passenger - transport company policy - nervous shock - statutory duty - The Passenger Transport Act 1990 (NSW) - damages - insurance - liability to indemnify

Counsel: Mr D.A. Wheelahan QC and Mr J. Bryson for the plaintiffs

Mr R. Dickson for the first and second defendants
Mr J.M. Gleeson Q.C. for the third defendant
Mr P. Garling S.C. for the first third party
Mr W.A. Martin for the second third party
Mr G. Miller Q.C. for the third third party

Solicitors: Attwood Marshall for the plaintiffs

Dunhill Madden Butler for the first and second defendants
Moray Agnew for the third defendant
Phillips Fox for the first third party
Gadens for the second third party

Corrs Chambers Westgarth for the third third party

Hearing Date: 9 March 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 3 April 1998

These two actions were commenced in the District Court at Southport in 1995. Each was transferred to this Court in 1997. It was ordered that they be heard together on 28 November 1997.
The plaintiff in each action is a parent of a daughter Kerryn who died as the result of injuries she received when struck by a motor vehicle driven by the third defendant as she crossed a road, having alighted from a stationary school bus owned by the second defendant and driven by the first defendant.
The plaintiffs had three young daughters, Kerryn Scrase, aged about 10 years, Laura aged 8 years and Michelle aged 6 years. The three children habitually travelled together to and from school by bus and Kerryn as the eldest seems to have exercised at least some influence, if not control, over her younger sisters in their travel to and from school. All the children had been given road safety instructions by their parents and indeed had received such instruction at school. They had used that bus service during the whole of the school year preceding the accident which occurred on 17 November 1993. They knew the first defendant, the bus driver who regularly drove them to and from school by the name “Henry”. It is clear from the whole of the material that he also knew them, and I infer, that they lived down Kingston Drive. If he did not know where they lived, he certainly knew the general area in which they resided. At least I draw that inference from the evidence in the absence of any evidence from the first defendant.
Kerryn was struck as she ran from the school bus across Darlington Drive, a roadway collecting traffic from Benowa near Tweed Heads. She was returning to her residence a short distance away in Kingston Drive. She suffered horrifying injuries and the plaintiffs arrived at the scene of their daughter’s injury within minutes of it. She was still alive when they arrived, although unconscious. She was taken to hospital in an ambulance which they followed. She died about the time of her arrival.
The plaintiffs viewed the body of their deceased daughter within an hour or so of her injury; the father performed the function of formally identifying her body.
The emotional trauma suffered by each parent has been severe. Each has been permanently and significantly damaged. The father has had his earning capacity very substantially diminished.
The injured child was struck as she walked from the western side of Darlington Drive to the footpath on its eastern side. The school bus from which she had alighted had been travelling in a northerly direction on the western side of the Drive when it pulled up at a bus stop on the northern part of the junction of Kingston Drive and Darlington Drive. Kingston Drive proceeds in an easterly direction from the eastern side of Darlington Drive. In fact there were bus stops more or less opposite each other on either side of Darlington Drive just to the north of the northern alignment of Kingston Drive and the plaintiff was crossing the roadway more or less between those bus stops.
Where Kerryn was injured, Darlington Drive was so constructed that it had for the most part a kerb to kerb with of 10.5 metres; however, on its eastern side (to which the injured child was crossing) its footpath near Kingston Drive protruded about 2.4 metres or so to the west of the line which the eastern kerb of Darlington Drive generally followed. It seems to have been a feature of this particular residential subdivision that at each junction of side roads with Darlington Drive, the footpath protruded a distance of about 2.4 metres further into the trafficable area of that Drive than it did away from those junctions. The result of this design was that the injured child had to cross a bitumen strip about 8.1 metres wide before she reached the eastern kerb alignment which protruded about 2.4 metres to the west of the general kerb alignment.
When she alighted from the bus the first defendant was sitting in the driving seat. The bus was fitted with rear vision mirrors on either side and I infer that had he looked in the rear vision mirror nearest to him on the driving side of the bus, he would have had an unobstructed view of traffic approaching his bus from the rear over a distance of at least 200 metres and perhaps more.
As the child crossed Darlington Drive, there was a group of school children waiting at the bus stop opposite the one at which the first defendant had brought his bus to a stop. The children of generally tender age I assume were waiting for a bus which travelled in a southerly direction to take them to a school south of that bus stop.
The Scrase children resided with their parents in a residential unit in Kingston Drive about eight doors down from its junction with Darlington Drive.   It took a few minutes to walk from that unit up to Darlington Drive.
The plaintiffs had moved to that residence about the beginning of the year and their three young daughters had regularly caught the school bus to school at Tweed Heads from the bus stop on the northbound side of Darlington Drive to which I have referred, and had regularly travelled home by bus on the southbound side of that Drive in the afternoon and were accustomed to alighting at the bus stop in the direction of which the injured child was walking at the time of her injury.
The routine to which all three young children were accustomed was that going to school in the morning, they would walk from their residence to the footpath on the eastern side of Darlington Drive. That would take them a few minutes. They would then cross Darlington Drive and wait for a bus at the bus stop on its western side to go to school. Coming home in the afternoon they would alight from the bus on the eastern side of the Drive and simply walk down the footpath in Kingston Drive to that residence.
On the day of the accident, the three children left home five or ten minutes before 8.30 a.m., the time when the bus would depart from the stop near Kingston Drive to take children in a northerly direction to school at Tweed Heads.
It is the case for the plaintiffs that their daughter’s death resulted from a breach of duty on the part of each of the defendants. It is said that the third defendant in the circumstances of which he was aware, drove at an excessive speed, failed to keep a proper lookout, and failed to give any warning of his approach in an area where school children of tender age were obviously congregating and where as he drove past the stationary school bus there would be only a relatively short distance between the side of his motor vehicle and the driver’s side of the stationary bus obscuring the presence or approach of young children.
With respect to the first defendant, the plaintiffs assert that he failed in his duty to warn Kerryn, after he gave her permission to alight from his bus, to exercise caution in crossing Darlington Avenue because he was aware or at least ought to have been aware that the motor vehicle driven by the third defendant was driving at a speed of from 60 to 65 kilometres per hour towards that part of the roadway which she was about to hurriedly cross. It is said that the second defendant is vicariously liable for this negligence of the first defendant.
It is asserted further however that the second defendant was also in breach of duty in requiring the first defendant to observe a policy which resulted in the first defendant refusing entry to the school bus to any school child who did not have with him or her an official school bus pass which was apparently provided by or through the Education Department. This policy required that school children produce their pass upon pain of being refused entry or of being required to pay the ordinary fare, even though the bus driver concerned may have seen the relevant bus pass on numerous earlier occasions and be well aware that a child in fact did have a bus pass which, for one reason or another, it was unable to produce on a particular occasion.
On the evidence, the 8 year old child Laura had, by oversight left her bus pass at home and on being informed she would not be allowed on the bus without it, had asked the bus driver, the first defendant to wait for her while she went back home to get it.
It is the contention of the plaintiffs that it was the implementation of that policy which led to the child Laura leaving the bus to go home to get her bus pass while the bus driver waited for her to return with it. After some time had passed, for reasons not difficult to imagine, the older child, Kerryn asked permission of the bus driver to leave the bus to see what was holding up her sister’s return. At that time there were 50 or perhaps up to 70 children waiting in the stationary bus pending the return of the child Laura with her bus pass and one can image the pressure that the child Kerryn felt herself under to take steps to get her little sister back on to the bus as soon as possible. It is the contention of the plaintiffs that it was the implementation of the policy relating to production of bus passes with respect to the child Laura that was a cause of the death of Kerryn who left the bus to expedite the return of her younger sister with her bus pass.
It is convenient to deal firstly with the breach of duty alleged against the third defendant.          It is clear on the material that as he approached the stationary bus, the third defendant knew that it was a school bus because of its colour and the fact that “School Bus” was printed in large letters on the rear window; which also had a large representation of young children walking across the road in a direction away from the kerb side of the bus. It was stationary for the whole of his approach along a relatively straight unobstructed road for a distance of at least 200 metres. He says that he was travelling at a speed of between 60 and 65 kilometres per hour.
Sixty kilometres per hour is 16.6 metres per second. Sixty five kilometres is 18 metres per second. The third defendant therefore must have had the school bus and the school children at the bus stop on the opposite side of the road in his view for at least 11 to 12 seconds before striking Kerryn. If his unobstructed view of the stationary bus extended for 250 metres he would have that view for between 14 and 15 seconds. The road map (Ex. 5) where 1 grid represents 250 metres suggests unobstructed vision would be at lest 250 metres and probably more. It is clear from the statement   he gave to the police on the day in question and indeed from his evidence that he was in the habit of driving along Darlington Drive each morning and that at the time of the accident he was travelling “about 60 to 65 kilometres at the most”. He said that as he was driving past the bus, a young girl ran out in front of the bus towards the eastern side of Darlington Drive and that he had actually run into her before he applied his brakes. Damage to the front of the car and indeed a tooth lodged near the windscreen wiper of the car photographed before it was moved after the infliction of the injury on Kerryn are consistent with the statement he made to the police and the evidence he gave. He said that her body was carried along as the car slowed down; when it came to a halt, leaving long skid marks behind it, her body simply fell off on to the road.
The third defendant made it clear in his statement and in his evidence that he was used to seeing school buses and school children catching them every morning as he drove to work. He said that there were usually school children waiting on the eastern side of Darlington Drive who apparently travelled in a southerly direction and that indeed he observed a group of such children waiting for the arrival of the southbound bus as he drove past the stationary northbound bus from which Kerryn had alighted. He said that his recollection of the accident was that the child ran straight out in front of his vehicle, that she was running “pretty fast” and that she did not look towards him. He said that when he first observed her she was a couple of feet in front of his vehicle.
He did not sound his horn before or as he drove his vehicle between the stationary school bus on the western side of the roadway and the group of school children waiting for a south bound bus on the eastern side of it.
After her injury, an ambulance attended promptly and the child was taken off to hospital. Then the bus loaded with school children departed the scene. The third defendant’s car was left on the roadway where it had come to a halt and photographs show its position and the position of the skid marks that it made.
A scale plan was prepared by a police constable investigating the incident which is Exhibit 6. This plan appears accurately to set out relevant distances and measurements etc. It does have on it a note “alleged position of bus”. The accuracy of this notation on the plan was certainly not proved. Indeed, the location of the “stationary bus” shown on the plan is quite inconsistent with the evidence of the mother of the child who said that as she drove along Kingston Drive after she heard of the injury to her daughter, she brought her vehicle to a halt on its southern side and walked across to the scene of the injury. She said that as she drove along Kingston Drive towards the stationary bus in Darlington Drive, she was heading directly towards the rear portion of it. If this were so, the stationary bus must have been opposite the entrance to Kingston Drive and well south of the position shown as the “alleged position” on Exhibit 6.
Unfortunately there was no independent or indeed any evidence of assistance placed before me from any other person who observed the location of the bus. I accept the evidence of the child’s mother that the rear portion of the bus was in such a position that if she had driven straight out of Kingston Drive across Darlington Drive, her vehicle would have come into contact with the rear of the bus; that would have put the front of the bus roughly 12 metres to 14 metres north of the southern kerb alignment in Kingston Drive and such a position would be consistent with the bus stop on the eastern side being roughly opposite the bus stop on the western side.
In my view, it is clear that the defendant did not apply his brakes until he had actually come into contact with the child and she was being carried forward by his motor vehicle travelling at 60 to 65 kilometres per hour. He was travelling at a rate of between 16 and 18 metres per second and if a reaction time of roughly a half second passed before the application of his brakes commenced to make tyre marks on the road, it would mean that the child would have been carried on the bonnet of the car for a distance of perhaps 8 or 9 metres before the brake marks commenced. This, it seems to me, would be consistent with the bus being in a stationary position where the child’s mother said she observed it as she drove towards the scene of the accident. The evidence given by the third defendant was in some respects inconsistent with the statement he made to the police officer on the day of the event. He said that the child approached his vehicle at a significant angle as she came into his view as she emerged from the front of the bus. I am unpersuaded that this was anything more than a reconstruction on the part of the third defendant.
Photographs of the bus indicate that it was about two metres in width or perhaps marginally more. The width of the VW Golf seems to be about 1.5 metres or thereabouts. The skid marks indicate the position of the VW Golf when the brakes were applied after impact with the child.
There is no evidence as to how far out from the western kerb alignment in Darlington Drive the bus was stationary, but it seems likely that there was a distance of about 2 metres between the driver’s side of the stationary bus and the passenger side of the third defendant’s vehicle as it drove past it. He estimated the distance to be five feet. Similarly, there was a distance of about two metres between the driver’s side of the third defendant’s vehicle and the kerb alignment on the eastern side of Darlington Drive where school children were standing at the bus stop waiting to catch a southbound bus.
In my view, to drive between a stationary school bus on one side of a road and a group of children waiting to catch another school bus on the other side of the road at a speed of 60 to 65 kilometres per hour when about only two metres separated the driver’s side of the vehicle from that group of school children and about two metres separated the passenger side of the vehicle from the stationary bus obscuring the presence or approach of school children towards the path of that vehicle, was negligent; the third defendant should reasonably have foreseen that a child might appear in his path. as he drove past the stationary school bus even if he could not have foreseen the very way Kerryn would run in front of his vehicle. I refer to the observations in Warren v Coombes (1979) 142 CLR 531 at 553.
That negligence in my view was exacerbated by the third defendant’s failure to give any warning of his approach by sounding his horn well before he reached Kingston Drive or commenced to drive past the bus. It is a matter of common knowledge and experience that the behaviour of young children who use school buses to travel to and from school is unpredictable. Children of tender age are renowned for becoming distracted from taking care of themselves in dangerous situations. On any view there is danger of injury to a school child crossing Darlington Drive, a significant traffic collector road in this area at 8.30 in the morning. The child Kerryn, was in fact distracted by her desire to assist her younger sister to find her school pass and get back to the bus because it had been delayed waiting for her. There is no doubt in my view that the child was distracted and that is consistent with what the third defendant observed just before or as he hit her. She was running across the road without looking in the direction from which he was travelling at a speed of 60 to 65 kilometres per hour.
I am unassisted by the expert evidence of Mr Johnston to the extent that it attempts to establish the likely speed of the third defendant’s vehicle at the time of impact with the child from the length of the skid marks left on the roadway. I prefer the statement that the third defendant made to the police and the evidence that he gave in this Court as to what his speed was at the relevant time as being more reliable. To the extent that his speed was less than 60 to 65 kilometres per hour, he would have had more time to slow down had he been keeping a proper lookout and observed the presence of the stationary school bus with the attendant risk of children attempting to run across the roadway.

With respect to the case against the first defendant, the plaintiff tendered three statements/records of interview which he gave to police officers investigating the death of the child. The first was given on the day of the injury. The second was given about a month later on 16 December 1993 and the third was given on 3 March 1994.
In his first statement, he explained the events leading up to the accident. He said that:
“All the school kids got on the bus except the one that didn’t have a bus pass. A young girl about nine said to me ‘I haven’t got my pass can I go home and get it’ I said to her ‘if you don’t live too far away you can, I’ll wait for you.”

He said she then went home to get her pass but he didn’t know whether she went across the road in front of the bus or behind the bus because he was ‘clocking the other kids in’. He said the bus had remained there for several minutes when Kerryn came up to him and said:

“I’m her sister, can I just go and check up and see if she’s alright.”

He said that he replied “Yes”.

He said:

“The girl then got off the bus and the next thing I knew, I heard a screech of brakes and a thump. I looked around and saw this girl on the bonnet of the car.”

He said that he didn’t see the actual accident because he was busy “trying to get the kids on the bus to sit in their seats”.

He said that at the time of the accident there was a “medium amount” of vehicular traffic on the road.
Interestingly, he observed after the accident that he noticed that a lot of the children were getting out of the school bus so he “rounded them up and got them all back on the bus”. He said that he did not remember telling the girl who was hit by the car to “hurry up”. He said that his employer, the second defendant did not have a policy that school bus drivers instruct children how to get on to or leave buses or how to cross the road; that was left to the drivers to decide.
Interestingly he also observed that he told school children on his bus every day not to go around in front of the bus when leaving it but to wait for the bus to leave before crossing the road; he also told them to watch out when crossing the road.
In an interview he had with police officers investigating the collision on 16 December 1993, he was asked about the second defendant’s policy in relation to schoolchildren not having their bus passes with them when they attempted to board the school bus. He said:
“For the kids I know I can issue them with a courtesy pass. For the ones I don’t know they pay a fare. Few of the kids they lose their passes”.

He went on to say that he had been instructed by the second defendant that he could get the sack if he did not insist on seeing a bus pass of schoolchildren boarding the bus. He said:

“If a bus inspector gets on the bus and asks a kid to see their bus pass and if he/she hasn’t got one and I haven’t issued a courtesy pass, then I can get the sack.”

He said there had been a couple of occasions, mainly with high school children when he had refused entry to the bus because children did not have a bus pass with them.

Interestingly, the first defendant in the second statement he gave, recounted that he said to Laura (the 8 year old) when she arrived at the bus without her bus pass words to the effect “you’d better go home and get it or I can’t let you on the bus without it”. He said he told her this because of the policy implemented by the second defendant. He said that he told her that if she did not live too far away she could go and get it and he would wait for her.
On 3 March 1994, a detailed interview was conducted with the first defendant in which he gave a slightly different version of events from those he had given on the two previous occasions. On that occasion he said that he normally collected about eight children from the bus stop at which Kerryn and her two sisters boarded the bus on the day of her death. He said at that time there were about 70 other school children already in the bus.
With respect to the presentation of bus passes, he said that on 17 November 1993, it was his duty to require the children to present their passes as they walked on to the bus. If they did not do that they had to get a “courtesy ticket” or pay a fare. He said a courtesy ticket was one which entitled them to travel on the bus. He had a book of those tickets and if they had left their school pass behind, he would record the name of the child when it boarded the bus and then if a bus inspector got on, the child would show him that ticket. He volunteered that children:
“have a great habit of leaving their passes at home so the ‘courtesy ticket’ covered them if they haven’t got their pass. Then the kids that have never had a pass pay a fare.”

He said that he had courtesy tickets on the day in question. He said he recognized the three children of the plaintiffs on the day of the death of Kerryn. When asked why he required that the girl Laura go back to her house to get her bus pass instead of simply issuing a “courtesy pass”: he replied:

“Well she asked me if she could go back and get her pass and I said ‘yes’. They seemed to have a thing about those ‘courtesy tickets’.

He said that the children didn’t seem to like to get “courtesy tickets”. He said that on occasions he had refused a school child entry to the bus to travel to or from school in circumstances where:

“They never had their pass, they wouldn’t accept a courtesy ticket and they didn’t have fare so they couldn’t get a ride.”

He said that that was particularly the policy implemented with respect to high school children.

In the third version of events, he said that on the morning of the death of Kerryn, he had had a lot of trouble with misbehaviour of school children in the bus and that there were a couple of others who did not have passes but they went home to get them. Elaborating again on the conversation he had had with Laura, he said that she was the first child in the line of children attempting to board the bus. He said she came up into the bus and said to him:
“I haven’t got my pass, can I go home and get it.”

He said that he replied:

“Yes, if you don’t take too long.”

He said that he had all the other children that were waiting to get on to the bus and that that was probably “the main reason why I let her go home”. This version of events differs significantly from the second version to which I have referred where he admitted that he had informed Laura that she had better go home to get her bus pass “or I can’t let you on the bus without it”.

He said that after the children waiting to board the bus had been checked on to it, they waited for Laura for a few minutes. He said that he was looking out the window watching for her, but could not see her. He said that Kerryn then came up and said:
“Can I go and see if my sister’s coming.”

He said that he said “yes” without saying anything more to her. He said he saw her get off the bus but did not look which way she went. He said that he was busy trying to control other schoolchildren on the bus and he heard the sound of impact between the vehicle driven by the third defendant and Kerryn “right next to the front of the bus”. He said the car stopped about a bus length ahead of his stationary bus. He stayed for a short time and eventually drove the bus full of the schoolchildren to the school.

He said he would normally instruct children about safety precautions to be taken in leaving a bus when they alighted from it when he was driving them home from school. Interestingly, the first defendant observed in passing that:
“I have seen a few near misses at that bus stop, not with my bus but with kids off other buses”.

He continued:

“I have seen kids off other buses at this particular bus stop many times and they run across the road without looking. They do it a lot. The kids have got to learn how to cross the road, look before they run out in traffic. There was a lot of traffic on that road and the bus stop is in a bad place”.

In the circumstances which I have outlined, I conclude that the first defendant was in breach of an obligation warn Kerryn to be careful crossing the road as she left the bus to see what was holding up the return of her younger sister for whom the bus and the fifty to seventy schoolchildren were waiting. The first defendant himself was obviously looking to see if she was returning but I infer that probably some at least of the schoolchildren in the bus were having something to say about the delay. Kerryn obviously offered to see what the cause of the delay was. The first defendant knew that it was a dangerous position for a bus stop. He had seen some “near misses” on previous occasions. If he had looked in his rear vision mirror when Kerryn asked his permission to leave the bus, he would have seen the approach of the third defendant at a speed of 60 to 65 kilometres per hour and he was aware of the propensity of schoolchildren in the buses he drove to run across the road without looking properly.
In my view the position he occupied as driver of the school bus which enabled him as he said to control the children while on the bus and to herd them all back on to the bus when they left it to look at the scene of the accident, indicates that he did exercise a degree of supervisory control of the children which they accepted while they were passengers on his bus to and from school. He did, when driving the children home, give them advice about being careful as they crossed the road because he knew of their propensity for carelessness. In the circumstances of the case, it is my view, that he ought to have told Kerryn as she left the bus to try to find out what was holding up the return of her sister to the bus, to be careful and to wait until the car that was approaching from the rear, of which even if he was unaware he ought in the circumstances to have become aware, had passed the bus before attempting to cross the road. He must have known that the child was anxious to try to speed up the return to the bus of her younger sister.
In my view, this is a case in which the bus driver was clearly under an obligation because of the relationship/proximity between him and the child Kerryn, to warn her to take care and in particular, to be careful of the approaching vehicle which struck her, of which he ought to have been aware. Presumably, his practice was to give schoolchildren on his bus a perfunctory warning about taking care crossing roads only in the afternoon when they were leaving the bus to go home rather than when they were boarding it to go to school. This is perfectly understandable because of course, they would be all standing on the footpath at the bus stop waiting to board the bus by the time he arrived on the scene. Perhaps the explanation is that it simply did not occur to him to warn Kerryn of the dangers she would obviously encounter leaving his bus in the morning to return home as she embarked upon a course for which she had specifically sought his permission after she had become a passenger in the school bus under his control at 8.30 that morning; had he been driving the bus home at 3 p.m. or so in the afternoon, he would probably have warned children as they left the bus to take care if crossing the road, as a matter of course.
The mother of Kerryn campaigned to have the bus policy relating to the production of school bus passes changed after the death of her daughter. In the course of conducting that campaign, she came into possession of two roneoed documents. They are Ex. 11. The first was a notice prepared by “Tweed Bus Service”, the precursor of the second defendant. It is interesting to note the content of this notice which is apparently addressed to school students using the bus service.
It is headed - “Notice to School Students”.
The notice reads:
“Tweed Bus Service will introduce a new school travel policy on Monday, 26th July 1993. From this date students must produce either a school bus pass, proper fare, weekly ticket or school travel authority or travel will be refused.

After School Travel

If you hold a school bus pass and you wish to travel to a destination other than home in the afternoon (e.g. sporting, training, etc) you must obtain a special purpose travel authority from the school. This authority is issued subject to a letter to the school from parents authorising the travel. Your school bus pass must be presented with the authority or normal fares are payable . -- For any further information regarding the new policy, contact ‘ -- ’”.

A second document bearing date 14 December 1993 is a facsimile to Vic Faley from Terry Plant,

general manager of the second defendant. It also was obtained by Mrs Scrase. This document

was prepared a little less than a month after the death of Kerryn. It reads:

“Tweed Bus Service School Bus Pass Policy -

1.Eligible students are required to produce bus passes.

2.Ineligible students are required to pay a fare.

3.If the event students cannot produce a bus pass or fare,
the driver will take student details and report to the company.

4.In every case, travel to or from school will be made
available to all students.

5.Any follow up enquiries will be made by the company in
conjunction with parents and schools.”

It is interesting to note that the first defendant on 17 November, told Laura Scrase, the sister of Kerryn:
“You’d better go home and get it”. (Meaning her bus pass) “Or I can’t let
you on the bus without it.”

Accepting that he did say that to the child (vide Ex. 3QA16), it would be consistent with the Notice to School Students as to the “New School Travel Policy” to operate from 26 July 1993 (vide Ex. 11).

By the time the first defendant gave the record of interview on 3 March 1994 concerning the use of “courtesy passes”, of course the bus policy had changed, presumably to that specified in the facsimile transmission from the second defendant’s general manager of 14 December 1993, which is Ex. 11.
A number of witnesses were called to give evidence about problems that they had had with the first defendant driving the school bus, refusing access to children who, for one reason or another did not happen to have their bus pass with them as they attempted to board the bus. Apparently, when they were having out of school class-room activities, it was sometimes the practice for them not to take their school bag to which usually, the bus pass was attached. Thus the school teacher at Tweed Heads State School, Russally Butler gave evidence of an argument she had had with the first defendant prior to November 1993 concerning his refusal to allow a child on his bus without a bus pass and about complaints she had made to the school authorities concerning this policy. Similarly, another mother of school children using this school bus, Colleen Hopkins had witnessed implementation of the same policy with other children prior to 17 November 1993. The student Anna Linecker gave evidence to the same effect.
I have been unassisted by any evidence either from the first defendant or the second defendant concerning this issue. The matter was clearly pleaded and no effort was made to call any direct evidence or to produce any explanation as to the reason for such a policy in operation on 17 November 1993.
In my view the policy on its face and without any explanation from either the first or second defendant was a grossly unreasonable one which put school children of tender years at unnecessary risk. One can imagine the effect on a schoolchild of tender years who, for one reason or another, did not have available the school pass which he or she had to the knowledge of the bus driver at a time when the child attempted to board the school bus to be taken home, perhaps many kilometres away from the school, to be told that he or she was not allowed to get on the bus without a school pass. That in fact was precisely the event about which Russally Butler gave evidence. Colleen Hopkins also gave evidence of the effect of implementation of the policy by the first defendant had on school children refused entry to the bus because they did not have their bus pass with them. In infer from the evidence of Mrs Scrase that Laura’s delay in returning to the bus was attributable to the fact that the child was so upset at being refused access to the bus without her pass that she needed to be calmed down and comforted. In fact Mrs Scrase had determined to drive the child to school herself.
It is contended on behalf of the first and second defendants that they were obliged to comply with Regulation 34 of the Passenger Transport Regulations 1990. Regulation 34 provides inter alia:
“34(1) When any passenger in a bus indicates to the driver his or her desire to leave the bus -- the driver must allow the passenger to leave -- the bus:

(a)by immediately bringing the bus to a standstill close to and parallel with the footpath; or

(b)in the case of a bus operating along any route or portion of a route where stopping places for buses are indicated by signs or notices by bringing the bus to a standstill at the next such stopping place

(2)--

(3)It is not an offence for a driver of a bus to refuse to allow a passenger to leave the bus before the first bus stop displayed on the bus as the first set down for passengers on the journey concerned.”

One of the objects of the Passenger Transport Act 1990 is to be found in s.4(c) which provides inter alia:
“(c)To encourage the provision of school bus services on a more commercial basis without disregarding the reasonable expectations of traditional service operators.”

Under s.16(1) of the Act it is provided:

“16(1)The terms and conditions on which any regular passenger services is to be carried on within or partly within New South Wales are to be set forth in a contract entered into between an accredited operator and the Director-General (on behalf of the Crown.”.

Section 17 of the Act refers to various provisions that must be made in a service contract

and with various provisions that may be made in such a contract.

It seems likely that the contract pursuant to which the second defendant provided the school bus service was a “non-commercial contract” within s.18(5) of the Act which provides:
“(5)A non-commercial contract may be entered into for any term (subject in the case of school bus services to the Regulations).”

Under s.63(2) Regulations may be made with respect to:

“(g)Requirements as to service contracts -- including;

(i) --

(ii) --

(iii) --

(iv) Conditions of service applicable to school bus services or in other special circumstances”.

Under Regulation 14 of the Passenger Transport Regulations 1990 it is provided -

“14.For the purposes of s.18(5) of the Act the holder of a non-commercial contract for school bus services is entitled to a contract for a five year period provided that the Director-General is satisfied that --”.

Unfortunately, the terms of the contract between the second defendant and the Director-General were not established; neither were the terms of the school bus passes used by the Scrase children at the time of Kerryn’s death. In spite of the content of Regulation 34, I would be surprised as I am sure parents of infant children making use of the school bus service provided by the Department would be surprised, if it emerged that a bus driver having taken aboard young children to deliver them to school would be compelled to pull the bus up at the direction of the child on the way to school and let the child out, irrespective of the circumstances in which the request or demand was made.
While it is not permissible to speculate on the contractual obligations of the people providing the school bus service, I would be quite surprised if an obligation was not to transport a child with a bus pass from a designated school bus stop near the residence of the child to the specified school and thence home again in the afternoon from that school to the designated bus stop. Most parents of young children I think would be appalled at the prospect of the driver of a school bus being obliged under penalty of criminal sanction to allow young children to disembark from the school bus when ever they sought to do so at stops between specified points of embarkation and disembarkation upon their bus pass. I am however, relieved of the necessity upon the state of the evidence of giving further consideration to this rather unmeritorious point because it is clear that the child Laura only requested permission to return home for her bus pass when the first defendant told her he could not permit her to enter the bus without it. Again, whatever may have been the rights of Kerryn under Regulation 34, both she and the first defendant obviously assumed that she did have to get his permission to return home to look for Laura to see what the delay was and indeed he gave her the permission sought. Whatever effect Regulation 34 may have had in other circumstances it did not, in my view, excuse the first defendant from failing to warn Kerryn in the circumstances of the imminent danger that he ought to have known she would obviously have to avoid in crossing the road in the path of the third defendant’s vehicle approaching at a significant speed.

Whatever may be the content of the contract pursuant to which the second defendant provided the school bus service, I take the view that the relationship between the school children and the first and second defendants was such as to require them to take the precautions and to avoid implementing the policy relating to exclusion of children without a bus pass which I have already discussed in detail. Had there been anything in that contract which might arguably have relieved them of that obligation, I am confident that the first and second defendants would have brought it to my attention as they did the provisions of Regulation 34 of The Passenger Transport Regulations of 1990.
I will turn now to consider briefly the liability of the defendants to the plaintiffs for the nervous shock they suffered as a result of the injury and death of their daughter Kerryn.
I am satisfied that each of the plaintiffs suffered severe psychiatric injury in the nature of depression and post-traumatic stress disorder. I will elaborate on the extent of their injury later in the assessment of damages.
It is clear that each of the plaintiffs witnessed the immediate aftermath of the negligence of the defendants when they came upon their gravely injured daughter lying upon the roadway, disfigured from the force of the impact which led to her death. They learnt of their daughter’s injury and were at the scene within minutes of it. They together followed the ambulance carrying their daughter to the hospital where, upon its arrival they saw or concluded that their daughter had died. They were therefore in sufficient proximity to the scene of their daughter’s injury in time and space to have a cause of action for nervous shock against defendants whose negligence resulted in the death of their daughter.
It was not really contended on behalf of any of the defendants that the plaintiffs had not established sufficiently to support their causes of action the necessary factors of time, space and relationship between them and their deceased daughter between her leaving home for school and dying at or on the way to hospital after her injury near the bus stop.
For the reasons I have given, I am satisfied that the third defendant was guilty of negligence, driving his motor vehicle into Kerryn as she crossed the roadway as he was passing the school bus.
I am also satisfied that the first defendant was guilty of negligence in failing to warn the child Kerryn of the approach of the car driven by the third defendant when she asked for and he gave her his permission to leave the bus to see what was holding up the return of her younger sister Laura.
The second defendant of course is vicariously liable for that negligence on the part of the first defendant. It is unnecessary to consider whether the second defendant is in any event responsible for that negligence on the basis considered in The Commonwealth v. Introvigne (1982) 150 CLR 258 at p. 271 per Mason J.
I am also of the view that the policy implemented by the first defendant at the insistence of the second defendant which led to him refusing to accept the child Laura as a passenger on the school bus unless she went home and got her school bus pass which she had overlooked because her school activities for the day did not require that she bring her school bag to which it was attached, was negligent. It was negligent because it put to unnecessary risk an eight year old school girl and perhaps other people who might expose themselves to risk as a consequence of her embarking upon a journey back to her residence which involved crossing a well-trafficked collector road at 8.30 a.m. in the morning. If there was any conceivable justification for the implementation of such a policy, no effort was made by either the first defendant or the second defendant to explain what it was. Within a month of the unfortunate death of Kerryn, that policy was completely reversed and I think the inference is open that it was reversed as a consequence of the tragedy that occurred as the result of its implementation on the day of Kerryn’s death.
A matter of complication however, is whether the negligence of the first and second defendant in requiring the 8 year old Laura to return home to collect her forgotten school bus pass was a cause of the death of her elder sister Kerryn, who some minutes later obtained the permission of the first defendant to go home to see what had delayed her sister’s return. Had Laura been injured as she travelled from the bus to her home and back for the purpose of getting her school bus pass, I think it clear that the second defendant would have been liable for that injury. Death or injury to a child of such tender years hurrying across a moderately trafficked road at that hour of the morning was clearly foreseeable.
Of course, it was not the child who was required to go home for her school bus pass who was injured. The injury was occasioned to her elder sister who obtained permission to go home and presumably escort her younger sister back to the bus with her school bus pass. As a matter of law then, can it be concluded that the death of Kerryn resulted from the negligence of the second defendant (and the first defendant) in requiring and/or permitting the 8 year old Laura to leave the bus to hurry home and back to the bus again?
The answer to this question seems to me to be relevant in determining apportionment of responsibility between the first and second defendants on the one hand and the third defendant on the other hand. In my view, should the implementation of the school bus policy which led to Laura leaving the bus to go home to get her school bus pass amount to negligence which was a cause of the death of Kerryn who went looking for her some minutes later it will inevitably follow that the second defendant will bear a greater share of responsibility than would be the case if the only operative negligence on the part of the first and second defendants was the failure of the first defendant to warn Kerryn as she hurried from the bus of the need to take care, particularly having regard to the approach of the third defendant at 60-65 kilometres per hour from the rear of the stationary bus.
Had the implementation of the bus policy relating to school children presenting their school bus passes not occurred, then the whole sorry events of the day would have been avoided. Neither Laura nor her 10 year old sister Kerryn would ever have had any reason to leave the bus and cross the moderately trafficked collector road. Each would simply have stayed on the bus and presumably been delivered safe and sound to the school to which it was travelling at Tweed Heads.
As far as it goes, the evidence suggests that the first defendant in refusing to permit Laura to board the bus without her school bus pass was simply obeying the directions he had received from the second defendant under pain of dismissal. This is not entirely clear because there is evidence that prior to the day of Kerryn’s death, at the insistence of the school teacher, Russally Butler, the first defendant had indeed written out some sort of courtesy pass for a little child to whom he had previously refused access to his bus because she had mislaid her official school bus pass. Presumably, there was some sort of courtesy system operating then and looking at the three statements given by the first defendant to investigating policemen, there seem to be some inconsistencies as to whether there was or was not such a system in operation at the time of Kerryn’s death which would have permitted him in some circumstances to have given Laura a courtesy pass. As I have indicated already, I was unassisted by any evidence from either the first defendant or any officer of the second defendant that would cast any light on this matter.
Whether the first defendant could or could not in his discretion have given Laura a courtesy pass, it is clear on the evidence that he did not do so. It is also clear in the second statement he gave to police officers that he told her that he could not allow her on the bus unless she went home and got her school pass. Whether he was then implementing the policy contained in the “Notice to Students” issued in July 1993 was a matter that could not be investigated in the absence of any evidence being called from the first or second defendant. In those circumstances, I infer that he was implementing that policy. In my view, it was an unreasonable policy and it unnecessarily put little school children at significant risk of injury. If on the other hand he was empowered to issue a “courtesy pass” in the circumstances, he was clearly in breach of duty in not doing so and the second defendant is vicariously liable for that breach. He would have been in clear breach of duty to the child Laura and indeed, to her parents should they have suffered nervous shock as the result of her injury in the course of her running off home to get a school bus pass. Whether however that negligence was causative of the death of Kerryn, is the real question which must be addressed.
The duty owed by the first defendant and the second defendant to the plaintiffs although not the same as the duty owed to each of Kerryn and Laura, is almost identical in content. On one approach, the first and second defendants owed a duty to each of the plaintiffs not to subject any of their three daughters to any avoidable or unnecessary risk of death or injury while they were using the school bus service for which the second defendant and derivatively the first defendant were paid by or through the Education system to facilitate the travel of school children between their homes and the school where they received instruction.
On one view of the facts, it was the implementation of the school bus pass policy by the first defendant with respect to Laura that was the real cause of Kerryn obtaining the first defendant’s permission to leave the bus to see why her younger sister was taking so long to return to it with her bus pass and/or to expedite her return. Indeed, that is the only explanation upon the evidence for the child Kerryn attempting to cross the road after she had boarded the school bus.
Whether the decision of Kerryn to go looking for her younger sister ought be categorized as a “novus actus” sufficient to break the chain of causation linking the negligence of the first and second defendants in requiring Laura to go home to get a bus pass and Kerryn’s death in the course of her attempting to expedite her return depends upon the characterization of Kerryn’s decision to go looking for her younger sister as a “voluntary act” not reasonably foreseeable as a likely or reasonably possible consequence of Laura’s departure from the bus to procure her bus pass.
I infer that the first defendant was well aware of the approximate ages of the plaintiff’s three children or at least of their relative ages at the time of Kerryn’s death. He had been driving those children to and from school for nearly a year. I infer that he was aware that Kerryn as the eldest of the three children exercised a degree of childish supervision over her two younger sisters and on the day in question felt some responsibility for her younger sister’s delay in returning to the bus which had the consequence of delaying its departure for school. In my view, the first defendant upon the slightest reflection would have known and understood the moral or family obligation which Kerryn would, and almost certainly did feel, was imposed upon her to take what steps she could personally to hasten the return of her younger sister so that the bus could take the school children without further delay to school at Tweed Heads.
In my view it must have been within the reasonable contemplation of the first defendant when he refused to permit Laura to board the bus without presentation of her school bus pass that should she not return as promptly as I am sure everybody on the bus hoped she would, Kerryn might well be motivated to do exactly what she did do - leave the bus in an attempt to procure the prompt return of her sister. Laura was after all only 8 years of age and it is common experience that children of that age do not always have the same perception of duration of time as more mature people. With respect to foreseeability, I refer only to Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 428 affirmed by the majority in Romeo v Convention Commission of the Northern Territory (High Court) unreported, 2 February 1998.
In some respects, the question of causation in this case is not dissimilar from that considered so long ago in Lynch v. Nurdin [1841] 1 Q.B. 30, 113 E.R. 1049. In that case, the driver of a horse and cart negligently left it unattended in a street. The seven year old plaintiff in company with a number of other young children climbed up on to the cart while another young child led the horse down the street. As the horse and cart was proceeding down the street, the plaintiff attempted to get off it and in the course of doing this, he slipped and fell under the wheel of the cart which broke his leg. The question in that case was whether the initial negligence of the cart driver could be said to be a cause of the plaintiff’s injury or whether that cause was superseded by the act of the plaintiff in climbing up on to and attempting to climb off the cart and/or the act of the other young boy leading the horse along the roadway when the plaintiff fell off and suffered injury. Unsurprisingly, it was there held that the chain of causation was not broken by the predictable actions of young children which but for the defendant’s negligence could not have resulted in injury to the plaintiff.
This principle was affirmed in Haynes v Horwood (1935) 1 K.B. 146. See Green LJ at 153-156, Maugham LJ at 163 and Roche LJ at 166. It was also applied in Chapman v Hearne (1961) 106 CLR 112. I refer to the discussion of this principle at 120-121.
In my view, having regard to the first defendant’s knowledge of the ages and relationship of the plaintiffs’ three young daughters, it was clearly foreseeable that should for any reason Laura be delayed in collecting her school bus pass, Kerryn as her elder sister, would likely be motivated to do exactly what she did do, leave the bus to investigate the delay of the return of her sister. This is precisely what she did do with the express permission of the first defendant and it was this action on her part that led to her death.
In my judgment, the negligence of the first and second defendant in forming and/or implementing a policy which required Laura to leave the bus and return home to obtain her bus pass was a cause of the death of Kerryn, sufficiently proximate to support a judgment against the first and second defendants independently of the breach of duty of the first defendant in failing to adequately warn Kerryn of the danger in crossing the road in the path of the approaching vehicle driven by the third defendant; both breaches come with Nagle and Romeo (supra).
There is no contribution proceeding of course between the first defendant and the second defendant. It is unnecessary therefore to attempt any apportionment of responsibility between them. It is necessary only to apportion responsibility between the first and second defendants on the one hand and the third defendant on the other.
Having regard to questions of fault, blameworthiness and responsibility on the part of the defendants for the death of Kerryn, I apportion responsibility at 40% to the first and second defendants and 60% to the third defendant.
I will turn now to the assessment of damages for each of the plaintiffs. At the time of their marriage, Jeffrey and Carol Scrase were aged about 19 years and 18 years respectively. They had significant difficulty in having their first child. Seven years passed before conception was first achieved and Kerryn was born on 6 March 1983. About two years later, Laura was born and two years later again, Michelle was born. The plaintiffs then had no further children. They had shifted to the Tweed Heads area about a year before Kerryn was killed in November 1993; she was then aged 10 years and her younger sister was aged 8 years and the youngest, aged 6 years.
It is clear that the family was a stable and happy one. Both parents enjoyed taking part in the activities in which the children were engaged and indeed, Jeffrey Scrase took great pleasure from the fact that Kerryn appeared to enjoy the sort of music which he enjoyed. Both parents engaged in the various sporting activities etc. in which the children became involved from time to time.
Each parent suffered severe and lasting emotional trauma as a result of witnessing the aftermath of the accident with led to Kerryn’s death. It will be convenient to assess damage with respect to each separately.

Jeffrey Laurence Scrase

At the time of Kerryn’s death, her father was 36 years of age. He was 40 years of age at date of trial. James Griffin, a parish priest at Tweed Heads was asked by Mr Scrase’s employer to visit him within a couple of hours of his daughter’s death. He had had some experience in counselling and so on, and he gave evidence that when he spoke to him that day, he observed that the male plaintiff was in shock, angry and unable to cope.
Thereafter, Mr Scrase was counselled and given assistance by a Dr Soden. Eventually that doctor thought that his problem was getting beyond her and she referred him to Dr McNamara, a very experienced psychiatrist. He first saw Mr Scrase on 8 April 1994. Since that time, he has seen him regularly. He saw him monthly for a couple of years and over the last 18 months has seen him each fortnight. He has prescribed drug therapy for him. His opinion is that the male plaintiff suffered a major depressive illness with some post-traumatic stress disorder.
As a consequence of these problems, he became obsessed with feelings of guilt and feelings of injustice. His principle illness is major depression. It is chronic and has varied from being severe to extremely severe to the point of motivating him towards suicide or even homicide. It is clear on the whole of the evidence that the plaintiff lost the capacity to perform the work at which he was excelling in selling motor vehicles of various kinds at Tweed Heads. He attempted to do that once or twice but his mental problems really prevented him from pursuing that line of work. A year or two ago, with the assistance of Father Griffin, he obtained part time work as gardener/ handyman, performing tasks around parish property but he was able to do this work with some limitation only for about 20 or 25 hours per week. It is Dr McNamara’s view that he has been left with only a marginal capacity to be employed to do anything and that he is very fortunate to have a sympathetic employer who gives him some casual, labouring type work. That work has probably been good for him in assisting him recover to some extent from the severe affliction that the nervous shock caused him. He is presently highly intolerant of people as the result of his depression and tends to brood for long periods of time. This has induced him in the past to take an overdose of medication and to offer violence to one of the second defendant’s buses and to make threats against an officer of the second defendant company. According to Dr McNamara, the plaintiff will probably continue to have these problems. He said that on three or four occasion since he has been treating him, the plaintiff had actually become psychotic and lost touch with reality. He has had to take anti-psychotic medication to quell bizarre symptoms. His view is that the plaintiff will need psychiatric counselling for at least 5-10 years in the future. He may need counselling from time to time indefinitely. For the next couple of years, he will need counselling each fortnight, because he needs on-going psychotherapy. If he does not get it regularly, he starts to “decompensate” again. Doing the best he can, Dr McNamara suggests that the plaintiff will need fortnightly psychiatric counselling sessions for between two and five years and then probably monthly sessions. Even while getting this continual treatment, there will be occasions such as anniversaries and various events bringing to mind the death of his daughter which will require that he gets specialized treatment and medication.

Dr McNamara says that on a couple of occasions he has attempted to reduce the drug dosage which the plaintiff has been taking but it has not succeeded and he has had to put him back on the high dosage that he is on. He says that the high dosage only just manages to “hold him together”. He takes Royhpanol which is a very strong and in some respects regarded as an unsatisfactory drug simply because that is the only way he can get sleep.
It was suggested that much of the male plaintiff’s problems flow from his anger and obsession about the behaviour of the defendants which led to his daughter’s death. In my view, that obsessional behaviour and the abnormalities in conduct and thought patterns etc. which have emerged subsequent to the death of Kerryn are simply symptoms of the underlying nervous shock which he suffered on the day of his daughter’s death and not something standing apart from and independent of that condition for which the defendants are not responsible.
I prefer the evidence of Dr McNamara to the evidence of either Dr Wendy Roberts or Dr Maguire who only considered the plaintiff for the purposes of litigation and have not really had the opportunity to treat him as treating doctors. Dr McNamara has examined and treated the plaintiff more than 50 times over the last 4 years. He says that in some respects he has made progress over that time but in other respects he has deteriorated.
Dr McNamara takes the view that once this litigation is over the plaintiff will be helped but will still remain significantly damaged and depressed.
Although Dr McNamara agrees that the plaintiff is on very significant amounts of medication, it is barely, if in fact at all, controlling his depression. He still suffers from a major depressive disorder in spite of the amount of drugs that he is taking. At the moment, he says that he is relatively well controlled and while he is able to work doing the sort of part time work that he is doing, which does not bring him much into contact with people, he ought remain well controlled - albeit still very depressed.
The average 40 year old male has a life expectancy of about 37 years.
The evidence indicates that at the time of the Kerryn’s death, the plaintiff was a very successful car salesman earning a good income and being provided with the use of a car fully serviced and fuelled etc. by his employers.
I adopt the past economic loss figures advanced on behalf of the plaintiff. They are fully supported on the evidence in my view. I assess his net loss of income as a car salesman at $642 per week for a period of 4.3 years which amounts to $144,048.11.
He has in fact earned money from St Joseph’s parish in the sum of $45,346.44.
I assess past net loss therefore in the sum of $98,701.67.
That sum less Social Service payments received in the sum of $13,565.20 amounts to the sum of $85,136.47. I calculate interest under the Common Law Practice Act on that sum at 5% per annum for 4.3 years to be $18,304.34.
With respect to future economic loss, I will assume that he would have worked for another 24 or 25 years. Had it not been for his injury, he would have earned at least $642 net per week selling cars etc. He currently earns $358 per week doing casual part time work for the church at Tweed Heads.
I assess his current net weekly loss therefore in the sum of not less than $284. Using the 5% tables, the present value of that loss for 24.5 years is $209,024.
Should he lose his present employment, the present value of the loss of $642 per week for 24.5 years would be $472,512.
The problem I have in assessing damages in this case, is that it is far from clear to me that the plaintiff will be able to continue indefinitely to work 20 hours per week doing the groundsman/labouring type work that he is doing. He may improve and be able to work longer hours or at a different job. On the other hand, if he has periodic periods of depression where he becomes psychotic, he may have difficulty even in retaining his present employment, much less obtaining better alternative employment. It seems likely that from time to time he will lose employment simply because of the periodic exacerbation of his depression.
I think the likelihood is that the plaintiff in the future will suffer a greater loss than his current one. I fix that loss in round figures in the sum of $300,000. In my view, however, it is necessary to discount that sum significantly for the ordinary vissicitudes of life and as well the very significant problems that the plaintiff will have with his recurrent depression related psychosis that he has displayed over the last four years or so. I accept the prognosis of Dr McNamara that he will require regular fortnightly counselling sessions for up to five years and thereafter perhaps, monthly counselling sessions for the rest of his life. I accept that in some respects his depression has got worse over the last couple of years. That being the situation, it seems to me that the plaintiff is at significant risk and a greater than usual discounting factor ought be applied. I discount the sum of $300,000 by 25% and assess damages for future economic loss in the sum of $225,000.
I accept the evidence of Dr McNamara and the calculations advanced on behalf of the plaintiff that for the remaining 37 years of his life he will spend about $50 per week on psychiatric consultations and medication. The present value of that using the 5% table is $43,950. That figure must also however be discounted for contingencies on the same basis as the future economic loss figure was discounted. I discount that sum therefore by 25%.
I assess therefore the cost of future medical treatment in the sum of $32,962.50.
Special damages have been agreed in the sum of $4,104.60 (Ex. 25). I accept the evidence of this plaintiff and his wife as to the dreadful change in the plaintiff’s lifestyle that the nervous shock has brought about. It is a condition from which he will probably never completely recover. If he is fortunate he may improve. This seems to be far from certain. With respect to pain, suffering and loss of amenities of life, I assess damages in the sum of $80,000.   I apportion 20% of that sum to pre-trial. I assess interest therefore on $16,000 of that sum for 4.3 years at 5% which is $3,440.
In summary, I assess damages as follows:-
Pain suffering, loss of amenities -   $80,000.00
Interest on $16,000 of that sum -   $3,440.00
Agreed Special Damages (Ex. 25)   $4,104.60
Pre-trial economic loss         $98,701.67
Interest on part thereof for 4.3 years -  $18,304.34
Future economic loss   $225,000.00
Future medical treatment  $32,9622.50

TOTAL $462,513.20

Carol Anne Scrase

The plaintiff was aged 34 at the time of the death of Kerryn and was 39 at trial. This plaintiff has suffered from both post traumatic stress disorder and depression. Her condition developed almost immediately upon the death of her daughter. The symptoms then produced have continued up till the present time. She has lost many of the amenities of life. She suffers from chronic insomnia and unwanted intrusive recollections of what she observed on the day of her daughter’s death. She suffers from nightmares and consciously and perhaps subconsciously tries to avoid situations which might produce danger to her remaining children. Whenever she sees the yellow school bus she develops a panic reaction and a sense of impending loss.
Dr McNamara did not treat Mrs Scrase until towards the end of 1994. Initially she was treated by Dr Soden who gave her appropriate medication. However during the whole of the time that she has been treated by Dr McNamara - approaching about 3½ years or so, she has had chronic post traumatic stress disorder symptoms. He says that the prognosis for this condition is now not good and that because the plaintiff has had this condition for so long, she might never overcome it. Her depressive disorder runs side by side with her post traumatic stress disorder. She has significant sleep and appetite disturbance. She blames herself for the loss of her daughter. She has cognitive disturbances and difficulties with concentration and sometimes suicidal ideas. He said that her major depressive order may have developed because her post traumatic stress disorder has lasted for such a long period of time. At the time he saw her, her stress disorder was in fact itself complicated by the major depression from which she then suffered. He said that she had suffered from both depression and chronic post traumatic stress disorder for such a long time that it is unlikely that there will ever be a resolution of those problems and a restoration to sound psychiatric health. She will have both conditions indefinitely and will need continuing psychiatric treatment. He said that he thought referral to a psychologist would be useful for her treatment. He said that she would need to see her general practitioner Dr Soden every couple of weeks at least and additionally at times of crisis - such as anniversaries and things that brought to her mind the loss of her daughter. One of the developments of this plaintiff ‘s psychiatric illness is her tendency towards “somatisation”. This is a term applied when she appears with a lot of physical symptoms which upon examination, treatment, operation, etc appear to have no organic basis.   In her case her physical symptoms have been diagnosed simply as a manifestation of her psychological distress.
She is also taking drugs at the present time and she takes Royhpanol one night a week to secure a deep sleep. She has been plagued with nightmares and insomnia for so long that she needs sleeping tables indefinitely. She will also need to be on anti-depressant tablets for a long time. Dr McNamara however said that he hoped eventually her treatment would succeed to the extent of her no longer needing sleeping medication. He said that past attempts to get her off sleeping medication have failed and he is pessimistic as to the prospect of further attempts succeeding. He said that she would need to be on anti depressant medication for at least another five years and that if her medication was currently withdrawn she would deteriorate.
This lady also has been preoccupied with litigation and injustice and so on but not to the same extent as her husband.
He said that it would be a very difficult task to treat her psychiatric disorder which has resulted in “somatisation” - i.e. the expression of “emotional symptoms in physical terms”.
According to Dr McNamara, the outcome of this case is unlikely to effect any significant improvement in her post traumatic stress disorder. There may be more improvement with her depressive illness.
This plaintiff has been significantly injured psychiatrically although not to the extent I think of her husband. I am unpersuaded that she has suffered any loss of earning capacity as the result of her injury. I am unpersuaded that she would have worked for an income having regard to the role she had selected for herself to provide a good family environment for her children. I am unpersuaded therefore that there has been established on her behalf any past or future economic loss. I think she has suffered greatly as the result of the damage inflicted upon her and has had a very severe reduction in the amenities of life. It is likely that that reduction will last for the rest of her life over the next 40 years or so.
I assess damages for pain, suffering and loss of amenities of life in the sum of $65,000. I apportion 20% of that loss to pre-trial. Interest on $13,000 for 4.3 years at 5% amounts to $2,795.
Future costs of medical treatment and medication I assess at $50 per week. The present value of the expenditure of $50 per week for 40 years using the 5% tables is $45,100.
Discounted by 15% for contingencies that figure amounts to $38,335.
The cost of out of pocket expenses which includes past medication and counselling etc. has been admitted in the sum of $2,675 (vide Ex. 25).
In conclusion therefore, I assess the female plaintiff’s damages as follows:-
Pain, suffering, loss of amenities of life   $65,000.00
Interest on $13,000 of that sum  $2,795.00
Future medical costs   $38,335.00
Agreed special damages  $2,675.00

TOTAL $108,805 I now turn to the issues between the third parties as to their liability to indemnify the first and second defendant against the judgment given against them. There is no question as to the licensed insurer of the third defendant being obliged to indemnify the third defendant.

However, there is a dispute having regard to negligence established against both the first and second defendants:
The first third party is the insurer under the Motor Accidents Act 1988. Under that statutory policy it is obliged to indemnify the first and second defendants “against liability in respect of -- injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle --”. The wording of the policy reflects the obligation to insure imposed on owners of motor vehicles by s.9 of the Act.
The question then that has been debated is whether the liability of the first and second defendants can be categorized as one in respect of injury to Kerryn caused by the fault of the first or second defendants “in the use or operation of the school bus”.
The second third party and the third third party is each obliged under the terms of its policy to indemnify the second defendant against public risks and other risks not covered by a policy with the first third party.
It seems to be conceded that if the first third party is not obliged to indemnify the first and second defendants pursuant to the motor vehicle policy then the second third party and the third third party will be obliged each to contribute equally to such imdemnifaction.
In determining whether the negligence found against the first and second defendants requires an indemnity from the first third party insurer, I have had regard to Government Insurance Office of NSW v. Green & Lloyd (1965) 114 CLR 437, Dickinson v. Motor Vehicle Insurance Trust (1987) 163 CLR 500 and NRMA Insurance Ltd v. NSW Grain Corporation (1995) 22 MVR 317.
On the facts of this case, the negligence of the first defendant in failing to warn Kerryn of the approach of the third defendant’s vehicle towards the stationary bus and/or to warn her generally that she should be careful in crossing the road in an effort to bring Laura back to the bus so that it could leave for school without further delay occurred while the first defendant was in the course of driving the bus for the purpose of taking school children to the Tweed Heads School. The bus was being used for the very purpose for which it had been fitted out. The fault of the first defendant lay in his failure as a bus driver in charge of Kerryn as one of the school children who was on the bus on her way to school to give her the appropriate warning. He was obliged to give her the warning because as driver of the school bus, she was under his control and because of her age and childish propensities he knew or ought to have known she was at risk in crossing the road in the circumstances of which he was aware or should have been aware. In my view, Kerryn’s death was caused by the fault of the first defendant as driver of the school bus in the use or operation of it for the purpose of safely conveying school children to school without exposing them to unnecessary and avoidable risk between the time they boarded the school bus and the time they left it when it reached its destination.
With respect to the negligence of the first and second defendant in the adoption and implementation of the policy which led to the first defendant advising Laura that she could not get on the bus without her bus pass and then inferentially at least encouraging her to hurry home to get it by promising that he would wait for her “if it did not take her too long” in my view for the reasons I have expressed at length, the first defendant was at fault which led to the death of Kerryn. The second defendant in requiring observance of this unjustifiable policy, in my view, was also at fault, which caused the death of Kerryn. In my view, the fault of both the first defendant and the second defendant which led to Laura leaving the safety of the bus to go home across the moderately trafficked road to secure her bus pass arose in the course of the use or operation of the school bus for the very purpose for which it had been fitted out. It was used as a school bus for the purpose of safely conveying young school children from the bus stop where they boarded the bus to the school which they were required to attend. In my view, the negligence of the first and second defendants in requiring Laura to leave the bus to go home occurred in the course of the use and operation of the school bus as a school bus.
In my view, the first third party is obliged to indemnify the first and second defendants against their liability under this judgment under the terms of its policy under the Motor Vehicles Insurance Act in respect of the injury suffered by the plaintiffs as a result of the death of Kerryn Scrase.
It is unnecessary for me to consider in any detail the terms of the policies of insurance obtained from the second third party and the third third party, because on their face they have no operation in the event that the first third party policy indemnifies the first defendant and the second defendant against liability under this judgment given against them.
I give judgment for Jeffrey Lawrence Scrase against all defendants in the sum of $462,513.20.
I give judgment for Carol Anne Scrase against all defendants in the sum of $108,805.
I apportion responsibility for the plaintiffs’ damages between the first and second defendants on the one hand at 40% and the third defendant on the other hand at 60%.
I declare that the first third party is liable to indemnify the first and second defendants against their liability under this judgment. I declare that neither the second third party nor the third third party is liable to indemnify the first and second defendants against their liability under this judgment.
I will hear submissions with respect to any orders for costs sought by or against each of the plaintiffs, the defendants and the third parties.