Workers' Compensation Board of Queensland v Speare, Speare and Speare

[1997] QCA 273

IN THE COURT OF APPEAL	[1997] QCA 273
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.5110 of 1996
[WCB (Qld.) v. Speare] BETWEEN:

THE WORKERS’ COMPENSATION BOARD
OF QUEENSLAND

(Defendant by Election) Appellant

AND:

TRAVIS FRANK SPEARE

(Plaintiff) Respondent

KENNETH WILLIAM SPEARE
KERRIE LYNN SPEARE

(Defendants)

McPherson JA
Dowsett J

Mackenzie J

Judgment delivered 5 September 1997

Separate reasons for judgment for each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS:	MASTER AND SERVANT - injury of servant - liability of master for - employer instructed his employee/respondent, an apprentice pastry-chef, and another employee to convey a message - collision between the two on their bicycles on the return journey, when racing, through the Bell Street Mall - whether mode of authorised activity - whether in course of his employment.
NEGLIGENCE - liability - volenti non fit injuria - whether defendants voluntarily participated in a game or competition with inherent risks, so that he accepted those risks - whether respondent, as joint participant in the race, contributed to his own injuries - whether trial judge’s assessment of contribution should be disturbed - whether clear case of error.
NEGLIGENCE - personal injuries - quantum - whether damages award for pain, suffering and loss of amenities was manifestly excessive.
Counsel:	Mr R.A.I. Myers for the appellant Mr K.R. Geraghty for the respondent
Solicitors:	Clewett Corser Drummond for the appellant Shine Roche McGowan for the respondent
Hearing date:	13 June 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5110 of 1996

Brisbane

Before McPherson J.A.
Mackenzie J.
Dowsett J.

[WCB (Qld.) v. Speare]

BETWEEN:

THE WORKERS’ COMPENSATION BOARD OF QUEENSLAND

(Defendant by Election) Appellant

AND:

TRAVIS FRANK SPEARE

(Plaintiff) Respondent

KENNETH WILLIAM SPEARE
and KERRIE LYNN SPEARE

(Defendants)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 5 September 1997

In my opinion, the appeal should be dismissed with costs, for the reasons given by Mackenzie

J., with which I agree.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5110 of 1996

Brisbane

Before McPherson JA
Dowsett J
Mackenzie J

[WCB (Qld.) v. Speare]

BETWEEN:

THE WORKERS' COMPENSATION BOARD OF QUEENSLAND

(Defendant by Election) Appellant

AND:

TRAVIS FRANK SPEARE

(Plaintiff) Respondent

KENNETH WILLIAM SPEARE
KERRIE LYNN SPEARE

(Defendants)

REASONS FOR JUDGMENT - MACKENZIE J

Judgment delivered 5 September 1997

This is an appeal against a judgment in the District Court, Toowoomba, ordering the

appellant/defendant by election to pay the respondent $32,193.57 damages for personal injuries. The

respondent was an apprentice pastry-cook employed by his father in a shop at Toowoomba. He was

sixteen years of age at the time of the accident. On the evening of the accident the respondent's father

had instructed him to convey a message to his mother who was at that time expected to be selling pies

from a van outside a nightclub not far away. The respondent's father also instructed a fellow employee,

Smith, to accompany the respondent. Smith was about the same age as the respondent. They left the

bakery on their bicycles and rode to the nightclub but found that the respondent's mother was not there.

They then proceeded back towards the bakery by a different route which took them through the Bell Street Mall. While they were riding their bicycles through the mall the respondent and Smith collided.

The respondent gave evidence that he was travelling at a speed in the vicinity of 30 to 35 kph

which he had observed from a device attached to his bicycle. The pleadings alleged that the respondent

and Smith were racing. The learned Trial Judge found that the two youths were each attempting to

reach the bakery before the other and that the accident occurred when Smith attempted to overtake the

plaintiff in the course of their race.

The appellant challenges the finding that the respondent's father was vicariously liable for Smith's

negligence. The learned Trial Judge found that it was reasonably incidental to the respondent's

employment to return through the Mall. The appellant submitted that it was wrong, under the principle

in Deatons Pty Ltd v. Flew (1949) 79 CLR 370, to find that there was vicarious liability. It was

submitted that the competitive element in the manner of return to the shop should be classified as an

independent personal act which was not connected with or incidental in any manner to the work which

the respondent and Smith were employed to perform. It was submitted that a reasonable employer

would not have had in contemplation that an employee despatched to deliver a message might sustain

injury whilst involved in a joint "frolic" constituted by a bicycle race at high speed through a pedestrian

mall. The respondent's father authorised the two youths to ride their bicycles to the place where the

respondent's mother was expected to be and no doubt expected them to return reasonably directly once

they had done so. There is no suggestion that there was any specific prohibition of the conduct that led

to the accident by the employer, nor, so far as he was concerned, of riding through the Mall. It cannot,

in my view, be successfully maintained that what happened was so unconnected with the authorised

activity as to be characterised as not being a mode of performing the authorised activity. In my opinion it was open to the learned Trial Judge to find that the incident had occurred in the course of Smith's

employment and therefore the appellant's submission fails.

It was further submitted that having regard to the finding that the respondent was participating

in a race he had voluntarily assumed the risk that he may be injured. It was submitted that the incident

should be treated on the same basis as one occurring during participation in a game or competition

which has inherent risks and that the respondent should be treated as having voluntarily accepted the

risk associated with his participation in the race, or alternatively that there should be found to be a

substantially reduced standard of care owed by Smith to the respondent. In my opinion the cases where

people voluntarily participate in a sporting contest do not provide a true analogy to the present case.

While the learned Trial Judge, in the context of the pleadings and the conduct of the case, found that

what had happened could be described as a "race", in reality it was a situation where one 16 year old

youth rode at speed in the mall and the other youth who was accompanying him attempted to overtake

him, causing injury to the respondent. In my opinion the cases concerned with voluntary assumption of

risk while participating in sporting contests do not govern this case. Nor is voluntary assumption of risk

established on any other basis. The appellant fails on this aspect of the matter.

Finally in relation to liability, the appellant submitted that the respondent, being a joint participant

in the race, must be found to have contributed to his injuries to the extent of at least fifty percent. The

learned Trial Judge found that the collision between Smith's bicycle and the respondent's was caused

by Smith failing to properly control his bicycle and prevent it from striking the respondent's bicycle, and

in travelling at what must have been an excessive speed. He found that the collision between Smith's

bicycle and the respondent's caused the respondent's bicycle to go out of control, causing the

respondent's injuries. He found that Smith had failed to allow sufficient clearance between himself and

the plaintiff when commencing to overtake and failed to take sufficient account of the position of a light standard in the mall which partially restricted the available space to overtake. He also referred to the

heavy obligation on the driver of a following vehicle to a vehicle in front of it. He found that the speed

at which the respondent was travelling was a contributing factor in causing his bicycle to travel as far as

it did after the collision and strike the shopfront with sufficient force to injure the respondent. He

assessed the respondent's contribution at ten percent.

Where an assessment of contribution is made by a trial judge an appellate court will be reluctant

to disturb it except in a clear case of error. In my opinion the contribution found is a conclusion to

which the learned Trial Judge may properly have come having regard to his findings. The appellant has

failed to establish that the assessment should be disturbed.

Finally, the appellant submitted that the principal component of damages, an award of $30,000

for pain, suffering and loss of amenities, was manifestly excessive. It was submitted that a sum of only

$5000 would have been appropriate. We were referred to a number of individual examples of awards

for pain and suffering. As one would expect they show a wide variety of factual situations although they

are related to similar kinds of injuries. The learned Trial Judge found that the respondent had suffered

a compound fracture of the right radius and ulna and lacerations to various parts of his body. His arm

was in a cast for four weeks and initially he had difficulty with the extension of his fingers and thumb.

The arm fractured was his dominant arm. Later he was operated on because of poor extension in his

fingers and thumb. There had been scarring and adhesions to the tendons in the forearm. The result

of the operation was the fingers were improved but the thumb was not improved as much. His condition

stabilised and no further surgery was likely to help. There are residual problems of extension with the

fingers and, more seriously, with the thumb. While the respondent is capable of working as a

baker/pastry-cook he remains inconvenienced by reason of his remaining hand problems in working

with pastry, dough and fillings compared with a totally sound person. He was assessed as having a

permanent loss of function of the right hand of ten to twelve percent. He also suffered scarring which

embarrasses him although he usually wears suitable clothing to cover it. It is not possible to cover it

completely. He has some difficulties with his hobby of body-building because of his hand.

While the award of $30,000 for pain, suffering and loss of amenities may be considered high

in my view it is not so high as to call for an adjustment of the damages (FAI General Insurance

Company Limited v. Elford (1994) 1 QdR 258). The appellant's appeal against assessment of damages

also fails.

The appeal is dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5110 of 1996

Brisbane

Before McPherson JA
Dowsett J
Mackenzie J

[WCB (Qld.) v. Speare]

BETWEEN:

THE WORKERS' COMPENSATION BOARD OF QUEENSLAND

(Defendant by Election) Appellant

AND:

TRAVIS FRANK SPEARE

(Plaintiff) Respondent

KENNETH WILLIAM SPEARE
KERRIE LYNN SPEARE

(Defendants)

REASONS FOR JUDGMENT - DOWSETT J

Judgment delivered 5 September 1997

I agree generally with the reasons prepared by Mackenzie J and with the orders proposed by

his Honour. I wish to add only a short observation of my own.

There can be no doubt that the respondent was injured by Smith's negligent handling of his

bicycle while they were returning to the shop in the course of their duties. That they may have been

trying to return as quickly as possible would not have taken their activities outside of the scope of their

employment. The appellant seeks to avoid liability upon the basis that the respondent and Smith were motivated by youthful enthusiasm and competitiveness rather than by a sense of duty to their employer.

The fallacy of the argument is obvious.