Shepherd v Nominal Defendant - [2020] QSC 209

SUPREME COURT OF QUEENSLAND

CITATION:

Shepherd v Nominal Defendant [2020] QSC 209

PARTIES:

Chase Shepherd

(Plaintiff)

v
Nominal Defendant

(Defendant)

FILE NO/S:

SC No 686 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Townsville

ORDERS MADE:
TRIAL:

26 June 2020

15, 16, 17, 18 April 2019

DELIVERED AT:

Townsville

JUDGE:

North J

ORDER:

1.       Judgment for the defendant.

2.       Subject to order 3 or agreement between the parties the plaintiff should pay the defendant’s costs of and incidental to the action to be assessed on the standard basis.

3.       The order for costs should be as stated in order 2 unless within 21 days a party should submit in writing for a different order. Such submission shall be no longer than three pages and the question of costs shall be decided on the papers.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where the plaintiff was driving a motorcycle – where the plaintiff lost control of his motorcycle and collided with the gutter – where the plaintiff claims the accident was caused by the negligent driving of an unidentified motor vehicle – where the plaintiff suffers serious head and physical injury including orthopaedic injury and memory loss – where the plaintiff did not immediately recall or report the motor vehicle – where the defendant alleges the accident and the plaintiff’s subsequent injuries were caused by his own negligence in driving at an excessive speed or failing to maintain effective control of the motorcycle or driving without due care and attention – consideration of liability and quantum of damages

COUNSEL:

Mr Campbell SC and Mr di Michiel for the plaintiff

Mr Diehm QC and Mr Elliott for the defendant

SOLICITORS:

Premier Compensation for the plaintiff

Jensen McConaghy for the defendant

Introduction

The plaintiff sues by his litigation guardian, his brother. In the early hours of 28 June 2012 he sustained significant head and physical, including orthopaedic, injuries in an accident when he lost control of his motorcycle. The plaintiff alleges the accident was caused by the negligent driving of an unidentified motor vehicle. As pleaded the defendant alleges that the accident and the plaintiff’s subsequent injuries were caused entirely by his own negligence in driving at an excessive speed or failing to maintain effective control of the motorcycle or driving without due care and attention. It is also alleged that the defendant was driving while adversely affected by alcohol contrary to s 47 of the Civil Liability Act.[1] Both liability and quantum are an issue though by the conclusion of the trial there was a substantial measure of agreement concerning the assessment of damages.
[1] See para 4(d) of the defence filed 24 September 2018.
To understand some of the evidence and how the case for both plaintiff and defendant and the parameters of the evidentiary contest between the parties it is helpful to quote from the pleadings. As pleaded the plaintiff alleges that the accident and his injuries were caused as follows:[2]
[2] See Statement of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherd v Nominal Defendant

Details

AGLC: Shepherd v Nominal Defendant [2020] QSC 209
Case: [2020] QSC 209
Decision Date: 26 June 2020

CaseChat Overview and Summary

The plaintiff in Shepherd v Nominal Defendant brought a claim against the defendant for damages arising from an accident in which the plaintiff lost control of his motorcycle and collided with a gutter. The plaintiff claimed that the accident was caused by the negligent driving of an unidentified motor vehicle, which resulted in the plaintiff suffering serious head and physical injuries, including orthopaedic injuries and memory loss. The defendant countered that the accident and subsequent injuries were due to the plaintiff's own negligence, specifically driving at an excessive speed, failing to maintain effective control of the motorcycle, or driving without due care and attention.

The legal issues before the court involved determining the primary cause of the accident and whether the plaintiff's injuries were due to the defendant's negligence or the plaintiff's own actions. The court needed to assess the credibility of the plaintiff's account, given his lack of memory regarding the accident, and the absence of any evidence identifying the alleged negligent motor vehicle. The court also had to evaluate the extent of the plaintiff's injuries and their impact on his ability to work and live independently.

In its reasoning, the court considered the plaintiff's lack of memory of the accident, which was corroborated by Senior Constable Busetti's evidence that no statement was taken from the plaintiff at the time. The court also noted the absence of any CCTV footage that could have captured the alleged negligent motor vehicle. Despite these factors, the court found the plaintiff's account credible, supported by the severe nature of his injuries and the expert medical evidence regarding his cognitive and physical impairments. The court determined that the plaintiff's injuries were significant and would likely prevent him from returning to his previous employment or engaging in most forms of open employment.

The court awarded damages to the plaintiff, reflecting the severity of his injuries and their impact on his life. The final orders included compensation for medical expenses, loss of earnings, and other related costs.

Orders

Orders of the court

26 June 2020

15, 16, 17, 18 April 2019

Background

Background to the litigation

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Evidence

Evidence Before The Court

When cross examined Senior Constable Busetti gave evidence that on the 24th July 2012 he had an interview with the plaintiff at the Townsville Hospital. No statement was taken from the plaintiff. The plaintiff told Senior Constable Busetti that he had no memory of the accident.[114] When cross examined Senior Constable Busetti said that any CCTV footage of the intersection or approaches to the intersection would only be available for about 48 hours to about a week[115] with the consequence that by the time of the interview on 24 July 2012 any CCTV footage would be lost. Senior Constable Busetti agreed that the Dalrymple Road Duckworth Street intersection is a major intersection with a lot of traffic. He agreed that at all hours of the day and night traffic might pass through that intersection and he would not expect the road to be unoccupied by cars for any stretch of time.[116] Senior Constable Busetti agreed that Duckworth Street has a slight bend or curve to the right as a motor vehicle enters it having crossed Dalrymple Road from Nathan Street.[117] Senior Constable Busetti said that other than some scrape marks[118] on the road and bits of debris after the gutter marks[119] there were no other marks or information showing from where the motorcycle had come.[120][114] T3-58 l35.[115] T3-62.[116] T3-63.[117] T3-60.[118] T3-61 l10.[119] T3-60 l40.[120] T3-60 l30.The evidence – the injuries and consequences With the agreement of the defendant he, plaintiff, tendered a number of expert reports from doctors and psychologists who examined the plaintiff. With the exception of Dr Gillett who was called and asked some questions on some aspects of the plaintiff’s need for care there was no challenge to the tender of the reports by the defendant or to the contents. The reports were as follows: In his report Mr Rawling concluded that the head injury sustained in the accident was severe in nature. He noted that the plaintiff complained that his memory was less reliable, that he was having difficulty in processing things said to him and that his own speech had become slow and hesitant. While on testing basic intellectual functions well maintained deficits were evident in a number of features. Mr Rawling concluded that the slowed rate of thinking and impairments were a direct result of post traumatic brain damage. Based on presentation and performance Mr Rawling expressed the opinion that it was difficult to see how the plaintiff could maintain the level of productivity required in most open employment positions. Since more than three years had elapsed since the accident the plaintiff’s cognitive deficits could be considered permanent. Doctor Faux (specialist in pain medicine and in rehabilitation) noted the plaintiff had suffered from injuries which included an injury to the spleen requiring its removal, a ruptured diaphragm, a small intestine laceration, a left kidney laceration, left ulna and radius fractures requiring open reduction and internal fixation and a later bone graft, a right radius fracture requiring an open reduction and internal fixation, a right foot toe fracture, fractured ribs, left superficial radial nerve quality and a closed head injury with post traumatic amnesia. In Dr Faux’s opinion the plaintiff was unable to return to manual work. In her report of 12 November 2018 Dr Jungfer diagnosed that the plaintiff had suffered from a severe traumatic brain injury, cognitive disorder secondary to that injury and a grief disorder. She expressed the opinion that from a cognitive and psychiatric perspective the plaintiff would be capable of paid employment but that there would be issues with respect to employability due to his reduced coping resources and she was aware that there was a number of physical injuries sustained that may have a more substantial contributing factor to his long term employability.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Shepherd v Nominal Defendant [2020] QSC 209
PARTIES:	Chase Shepherd (Plaintiff) v Nominal Defendant (Defendant)
FILE NO/S:	SC No 686 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Townsville
ORDERS MADE: TRIAL:	26 June 2020 15, 16, 17, 18 April 2019
DELIVERED AT:	Townsville
JUDGE:	North J
ORDER:	1. Judgment for the defendant. 2. Subject to order 3 or agreement between the parties the plaintiff should pay the defendant’s costs of and incidental to the action to be assessed on the standard basis. 3. The order for costs should be as stated in order 2 unless within 21 days a party should submit in writing for a different order. Such submission shall be no longer than three pages and the question of costs shall be decided on the papers.
CATCHWORDS:	TORTS – NEGLIGENCE – GENERALLY – where the plaintiff was driving a motorcycle – where the plaintiff lost control of his motorcycle and collided with the gutter – where the plaintiff claims the accident was caused by the negligent driving of an unidentified motor vehicle – where the plaintiff suffers serious head and physical injury including orthopaedic injury and memory loss – where the plaintiff did not immediately recall or report the motor vehicle – where the defendant alleges the accident and the plaintiff’s subsequent injuries were caused by his own negligence in driving at an excessive speed or failing to maintain effective control of the motorcycle or driving without due care and attention – consideration of liability and quantum of damages
COUNSEL:	Mr Campbell SC and Mr di Michiel for the plaintiff Mr Diehm QC and Mr Elliott for the defendant
SOLICITORS:	Premier Compensation for the plaintiff Jensen McConaghy for the defendant