Daley v Bell & Nominal Defendant [2006] QSC 311

State Reporting Bureau |xoog] OSC 3) 1 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Claim No 551 of 2004 BENJAMIN JOHN PATRICK DALEY by his litigation guardian PATRICK JOHN DALEY and ALEXANDER RICHARD CONAN BELL and NOMINAL DEFENDANT CAIRNS ..DATE 16/08/2006 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 25 August, 2006 Plaintiff First Defendant Second Defendant VARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal iffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for heir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 h Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HIS HONOUR: The plaintiff was born on the 11th of July 1983 and is now 23 years of age. On 20th of November 2001, when 18 years of age, he was struck by a motorcycle whilst walking along a suburban road in Cairns. He suffered severe injuries including permanent brain damage. The list of his residual disabilities includes the following: - Severe ongoing neurological dysfunction. He is mute. He indicates laughter with a squawking sound but is able to answer simple commands with some movements. Has difficulty with mobility and is virtually wheelchair bound. Is unable to turn over in bed at night and requires turning every four hours. Is unable to swallow foods and depends on a peg tube. He requires and will continue to require full-time care. He can read but has poor attention span. He suffers lower limb spasms. He requires assistance with all activities of daily living. He has risks of pneumonia and respiratory failure. Is at risk of developing lower limb oedema. Is at risk of developing deep vein thrombosis and pulmonary embolus . His communication is very slow and very poor. Has a general intellectual ability at about the 9th percentile whereas his premorbid ability was at least at the 50th percentile. He requires ongoing occupational therapy and physiotherapy . 16082006 D.l T5/KAN M/T CNS1/2006 (Jones J) 1 10 20 30 40 50 2 JUDGMENT -- 2 of 5 -- There is not likely to be any improvement in his condition . The plaintiff has some insight into his losses but there has been some dulling of his emotions so that the full impact of the loss has not registered. The allowance of $170,000 including $10,000 for loss of expectation for general damages is within range. The plaintiff was injured before he had established any pattern of employment. He had commenced a university course but left after six months. He commenced an apprenticeship but he ceased that employment only on the day before the accident. He had the capacity to complete a tertiary course or an apprenticeship. His life expectancy is now assessed at 28 years and consequently the allowance for his loss of future earning capacity must take account of the lost years compared with the normal life expectancy for a person of his age. I am satisfied that the allowance made for loss of earning capacity is soundly based and is appropriate. The most significant component in the compilation of damages is the cost of future care. The basis for the allowance arrived at for this item was dealt with at length in the joint 16082006 D.l T5/KAN M/T CNS1/2006 (Jones J) 1 10 20 30 40 50 3 JUDGMENT -- 3 of 5 -- opinion of counsel retained on behalf of the plaintiff. I am satisfied that the allowance is appropriate in the circumstances and for the plaintiff's requirements as outlined in the material. The other allowances reflect the costs associated with meeting the plaintiff's needs arising from the injuries and these do not require further comment. In .the upshot the assessment.of the plaintiff's damages in the region of $5,000,000 in all the circumstances is appropriate. The defendant has alleged that the plaintiff was guilty of contributory negligence. The circumstances of the injury was that the plaintiff was struck from behind by a motorcycle which was out of control. The motorcycle was travelling unlit at night-time and its rider was a friend of the plaintiff. The plaintiff and another companion were walking on the road surface. One presumes that the plaintiff heard the approaching motorcycle as did his companion. His companion made a move away from the expected path of the motorcycle but the plaintiff did not. There is some uncertainty about what his movements might have been. If, for example, it was found that he had moved in the direction of the motorcycle then he would suffer an assessment of a much higher level of contribution than what is proposed. 16082006 D.l T5/KAN M/T CNS1/2006 (Jones J) 4 JUDGMENT -- 4 of 5 -- There is no doubt that the primary cause of the accident lay at the actions of the first defendant nonetheless there is sufficient uncertainty about the movements of the plaintiff and the fact that he was walking on the road surface when it was unnecessary for that to happen which in the end justifies making the allowance, notional allowance, for contributory negligence of 20 per cent to the plaintiff. I note that the parents of the plaintiff wish to have the matter resolved with some certainty and this is a proper matter to take into account when considering the appropriate sanction the amount of which is significantly influenced by possible findings of contributory negligence. For these reasons I am satisfied that the settlement is in the interest of the plaintiff and the settlement shall be sanctioned accordingly. 16082006 D.l T5/KAN M/T CNS1/2006 (Jones J) HIS HONOUR: I make orders in terms of the draft initialled by me and placed with the papers. Thank you, gentlemen. 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 5 --