Edwards v Nominal Defendant [2006] QSC 83

SUPREME COURT OF QUEENSLAND CITATION: Edwards v Nominal Defendant [2006] QSC 083 PARTIES: MELINDA LEE EDWARDS (plaintiff) v NOMINAL DEFENDANT (defendant) FILE NO/S: BS 9049 of 2002 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 28 April 2006 DELIVERED AT: Brisbane HEARING DATE: 20-24 March 2006 JUDGE: Muir J ORDER: 1. The defendant to pay the plaintiff the sum of $87,000, being one half of $174,000, the amount at which damages are assessed, including interest. 2. The defendant to pay the plaintiff’s costs of and incidental to the proceeding to be assessed on the standard basis up to and including 13 August 2004. 3. The plaintiff to pay the defendant’s costs from 13 August 2004, to be assessed on the standard basis including reserved costs, if any. 4. Direction that the defendant may set off against the judgment sum the amount recoverable by it from the plaintiff under the order for costs in its favour. CATCHWORDS: TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES – GENERALLY – where 15 year old plaintiff injured by vehicle – where vehicle uninsured – where extent of driver’s duty of care disputed – where plaintiff sustained head injuries – where extent and effect of injuries disputed – whether plaintiff contributed to damage – whether plaintiff’s injuries caused past and future economic loss including loss of income Law Reform Act 1995 (Qld), s 7 Fink v Fink (1946) 74 CLR 127 -- 1 of 16 -- 2 Naylor v Yorkshire Electricity Board (1968) AC 529 Smith v Topp & Anor [2003] QCA 397 State of NSW v Moss (2000) 54 NSWLR 536 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 COUNSEL: J W Lee for the plaintiff R B Dickson for the defendant SOLICITORS: Keith Scott & Associates for the plaintiff Walsh Halligan Douglas for the defendant Introduction [1] The plaintiff was 15 years old, in grade 10 at Springwood High School when, on 22 December 1995 at about 8.30 in the evening, she was injured in a motor vehicle accident. The driver of the motor vehicle, a Suzuki Swift, was one Gregory Pain. He was aged 18 and worked at the Springwood Coles supermarket with the plaintiff and her elder sister. [2] Mr Pain was an unlicensed driver and his vehicle was uninsured. The plaintiff claims, against the Nominal Defendant, damages for breach of duty. She alleges that her injuries were caused by Mr Pain’s negligent driving. The Nominal Defendant alleges that the plaintiff was the cause of her own misfortune or, alternatively, that she contributed to her injuries by climbing, uninvited, onto the bonnet of Mr Pain’s car. The plaintiff’s account of the accident and surrounding circumstances [3] The plaintiff’s version of the events leading up to the accident was as follows. By prior arrangement, Mr Pain picked the plaintiff up at her home at Stirling Street, Rochedale, and drove her to the home of her friend Diana Grimes in Argonaut Street, Slacks Creek, to attend a Christmas party. As Mr Pain drove into Argonaut Street, he commenced driving erratically, causing the vehicle to swerve from one side of the road to the other. [4] Ms Grimes was standing in the driveway of her house when the plaintiff arrived. The plaintiff alighted from the vehicle with a bag which she “‘chucked’… on the ground so [she] could go tell him to stop driving all over the road.” She turned around to see where Pain was and noticed that he was “driving around in the cul-de- sac”. She “hurried to tell him to stop driving like that… just walking… fast up the footpath… He was coming around the wrong side of the road and I just remember seeing the lights.” Her next recollection was waking up in Mr Pain’s car as he was driving her home. [5] In a motor accident personal injury notice of claim form signed by the plaintiff’s mother on 4 July 1996 in the presence of the plaintiff, it is stated that the plaintiff has “no independent recollection of the accident but ha(s) been informed of circumstances surrounding the accident by Diana Grimes who witnessed the accident.” The plaintiff was unable to recall if the form was completed in her handwriting or if she supplied the information contained in it. It is also stated in the form that “the last thing I remember prior to the accident is Mr Pain’s vehicle dropping me off at about 8.20pm.” -- 2 of 16 -- 3 The evidence of Diana Grimes [6] The evidence of Ms Grimes is to the following effect. She was standing on the driveway of her parents’ house when she saw Mr Pain’s car approaching, “fishtailing up the street.” The car stopped outside her house. The plaintiff alighted, threw her bag to Ms Grimes and “walked up the path to retrieve whatever she had left in the car.” The car was then “going around the roundabout the wrong way”. Ms Grimes bent to pick up some things which had fallen out of the bag. She looked up and saw the plaintiff stepping off the kerb. She did not see the car hit the plaintiff but “saw her falling back from the car” about two steps into the roadway from the kerb. [7] Immediately after the accident the plaintiff was lying on the road with vomit coming out of her mouth. Ms Grimes ran over to the plaintiff and tried to clear her mouth. Ms Grimes concluded that the plaintiff “wasn’t breathing…so [Ms Grimes] gave her mouth to mouth.” After this Ms Grimes observed that the plaintiff was breathing with difficulty. Ms Grimes “picked [the plaintiff] up off the road and helped her to the… kerb.” The plaintiff had blood coming from her head and her elbows and was disoriented. [8] Ms Grimes asked Mr Pain to take the plaintiff to the hospital. A discussion took place and eventually Mr Pain departed in the car with the plaintiff. To Ms Grimes’ knowledge there were a number of adults, including her parents, at her home but she did not approach any of them for advice or assistance. Nor did she call an ambulance or suggest that one be called. [9] The account given by Ms Grimes to police some days after the accident was, in substance, as follows. She saw a car driven by Mr Pain pull up in front of her house, the plaintiff alighted, gave Ms Grimes her bag and lent into the car to get something. Ms Grimes and the plaintiff said goodbye to the driver. Ms Grimes dropped the plaintiff’s bag on the ground. The plaintiff then said something and ran off to the corner ahead of the car. [10] The account continues: “The car started moving slowly towards the end of the street. Just as [the plaintiff] started to walk out into the road the car sped up. It hit her in about the driver’s front of the vehicle. [The plaintiff] was knocked to the ground and I could see from my driveway she wasn’t moving. … Greg had stopped the car and got out and was standing next to her looking at her. … There was blood coming out of her nose and the corner of her head. There was vomit coming out of her mouth and she was choking so I put my finger in her mouth to clear it. I helped her to her feet and she staggered to the gutter and sat down. I tried to get Greg to take her to the hospital but he refused. He said ‘take her inside’. I argued with him and put her in the car. He said ‘get her out, get her out, I’m going to be late’. I argued with him to take her to the hospital and he got mad and drove off.” The evidence of Mrs Edwards relating to the accident [11] Mrs Edwards, the plaintiff’s mother, was at home when Mr Pain picked the plaintiff up soon after 8 pm on 22 December. Mrs Edwards saw her daughter again at about 9.15 that night when Mrs Edwards noticed the plaintiff “shuffling up the driveway”. -- 3 of 16 -- 4 Mrs Edwards described her daughter’s clothes and hair as being “messed up” and said that she was “dirty” and had a “strange kind of look in her eyes”. Mrs Edwards changed her daughter’s clothes, which “were all wet and dirty,” and took her to the Logan Hospital. Mrs Edwards’ evidence about the condition of the plaintiff’s clothes was unchallenged. Mr Pain’s September 1996 statement [12] Mr Pain died in 2004 and a statement given by him on 6 September 1996 to insurance loss adjusters acting on the defendant’s behalf was put in evidence. It includes the following: “… (17) However, when we arrived at Argonaut Street, Melinda EDWARDS’ friend came out to the vehicle and we were all talking and Melinda EDWARDS asked me for a drive of the vehicle. (18) I agreed to this and I then got into the passenger seat and allowed Melinda EDWARDS to drive the vehicle a short distance just in and around Argonaut Street. (19) I recall that at one stage EDWARDS stalled the vehicle and I then got back into the driver’s seat and EDWARDS got back into the passenger seat, and I drove the vehicle back to a position just past or outside of number 22 Argonaut Street, at which stage Melinda EDWARDS’ friend, (Diana – surname not known) was still standing on the northern footpath of Argonaut Street. (20) I recall that at the time, Melinda EDWARDS was in a very effervescent and bubbly mood, and was showing off to her friend. … (24) … Melinda EDWARDS then got out of the vehicle from the passenger side and I saw her walk around the rear of the vehicle to the driver’s side door to say goodbye. … (26) I can recall Melinda EDWARDS standing at my driving side door talking to me and her girlfriend, Diana, who was still standing on the footpath. (27) I recall that Melinda EDWARDS stepped backward towards the centre of the roadway – that is, about one to two metres back from the driving side of my vehicle. (28) I then called out goodbye and Melinda EDWARDS replied, ‘Goodbye.” (29) I am unable to recall whether I had to restart the ignition of the vehicle, or whether the motor was still running. (30) In any case, I commenced to travel forward at slowly increasing rate of speed, (that is, to a speed of approximately five kilometres per hour) and had travelled a distance of only approximately two metres when all of a sudden Melinda EDWARDS appeared jumped on the bonnet of my Suzuki Swift. (31) I did not actually see Melinda EDWARDS jump on to the vehicle. -- 4 of 16 -- 5 (32) I cannot recall what I was doing when this occurred. (33) In any case, I am sure the vehicle was already moving when Melinda EDWARDS jumped on to the bonnet – in fact, had travelled approximately two metres or more, I was beginning to take off to go places. (34) As previously stated, I am not sure where I was looking when Melinda EDWARDS jumped on to the vehicle, but when I saw Melinda EDWARDS she was sitting on the bonnet right in front of my windscreen (that is, front driving side of the bonnet) with her legs dangling over the driving side of the bonnet. (35) I repeat that I had travelled forward only a distance of approximately two metres before I saw or realised that Melinda EDWARDS was on the bonnet. (36) I am not sure how am definitely sure how Melinda EDWARDS got on to the bonnet, but I can only assume know that she had run and jumped on to the bonnet just after I had commenced to travel forward. … (39) I did not call out a warning to EDWARDS. However, I recall that where EDWARDS ended up on the bonnet when she jumped on to the vehicle, was blocking my view of the roadway ahead. (40) When I looked up and saw EDWARDS on the bonnet, I was still travelling forward and I panicked for a moment and braked momentarily. (41) I did not bring the vehicle to a stop. I just applied the brakes momentarily, reduced speed slightly I stopped, and I think know that I then took my foot off the brake. (42) In fact, as previously stated, I think know I panicked and accelerated to a speed of again approximately five to ten kilometres per hour, and travelled forward a further distance of approximately one metre before the mishap took place. (43) Melinda EDWARDS then fell off the driving side of the Suzuki Swift and struck the right of her head on the bitumen road surface, at a point about three metres out or on the southern side of the northern concrete water channel. (44) I immediately again applied the brakes and brought the Suzuki Swift to a stop within a couple of metres. (45) I then got out of the vehicle and went to see if Melinda EDWARDS was alright. (46) I recall that Melinda EDWARDS was lying on the ground or bitumen unconscious for approximately ten seconds before she came around, and I assisted her up. … (51) I then drove Melinda EDWARDS to her home at Rochedale, but did not go in with her to speak to her mother. (52) I recall that Melinda EDWARDS, when she left my car, in dazed and bleeding condition from the head and elbows, she appeared to be walking okay.” -- 5 of 16 -- 6 The neurological evidence [13] Dr Weidmann, neurosurgeon, in reports dated 19 July 2001 and 7 April 2005, concluded that the plaintiff had suffered “a moderately severe head injury” from which she had made a “good recovery overall”. He considered that she had suffered some degree of organic brain damage which could be clarified by “formal neuropsychological assessment.” In July 2001 he thought it unlikely that the injury would significantly affect the plaintiff’s educational or future employment prospects but considered that the plaintiff’s “day-to-day living and her social interaction may be adversely affected”. [14] In his second report, he noted that no objective abnormalities had been detected by him on his examination. He states: “8.2 Overall, she has made quite a good recovery from her head injury. Her problems with memory loss, impaired concentration and learning new material would be consistent with having suffered this type of head injury. It is likely that she has suffered a degree of organic brain injury as a result of this accident, although it is not severe enough to show on the MRI scan. 8.3 She also has coexisting psychiatric problems, and it can often be difficult to differentiate between symptoms due to depression and minor brain injury. In my opinion, psychiatric factors contribute significantly to her current problems. In assessing permanent impairment from her brain injury I refer to the A.M.A. Guidelines, using Tables 13-5 and 13-6. She has a Class I impairment relating to mental status, and in my opinion now has a 5% impairment of the whole person as a result of the organic component of her head injury. … … 8.6 Ms Edwards does not require any domestic assistance around the home. 8.7. I accept that her employment options have now been limited to some degree as a result of her head injury. However, I would not regard her as being unemployable and she should be medically fit for unskilled work of a light nature.” [15] In cross-examination, Dr Weidmann accepted that the plaintiff’s symptoms of migraine headaches were probably not related to her head injury. He also doubted that other headaches, reported by the plaintiff, were likely to be related to the head injury and concluded that the plaintiff’s risk of suffering an epileptic seizure as a result of the accident was now slight. [16] He also stated that it was to be expected in a case such as the plaintiff’s, where the organic brain damage was fairly minor, that abnormalities would not be detected on neurological examination. He said that in order to determine the degree of organic damage, if any, a clinical assessment by neuropsychological testing was required. -- 6 of 16 -- 7 [17] The plaintiff was seen by Dr Cameron, consulting neurologist, on 14 September 1999. The plaintiff was then 19 and in her second year of her acting course. In his report dated 15 September 1999, Dr Cameron said that he was unable to find any “specific abnormal neurological findings” on his examination and concluded that the plaintiff had made a very good recovery from her head injury. Although of the view that migraine headaches reported by her were not related to the head injury, he considered that she probably did “have some minor residual disturbance of brain function as a consequence of this head injury”. He assessed that at around 5 per cent overall impairment of whole person function. He considered that the risk of her developing an epileptic disturbance would be to the order of 11 per cent at that time but that she did not require any further investigations or treatment. In his opinion, the residual effects of the head injury would not interfere with a career in acting and would not shorten her expected working life. [18] In cross-examination, Dr Cameron gave the opinion that mild head injuries tend not to have “any associated problems with general employment.” He was of the view that the plaintiff’s condition had stabilised by the time he saw her in 1999. In his experience, such injuries tended to stabilise within about two years and any deterioration in a patient’s condition after two or three years would probably be the result of other factors. In his opinion, the worst deficits or complaints in such cases normally manifest within a couple of years after the accident. The neuropsychological evidence [19] Dr Field, neuropsychologist, gave a report dated 30 October 2001, having seen the plaintiff on 31 July of that year. The opinion was stated to be based on the history given by the plaintiff, the results of psychological tests and questioning and “characteristics of performance observed during conduct of the tests”. The report records weaknesses in the following areas: attention/concentration – mild to moderate deficits; memory deficits – mild to severe – measurable memory – moderate deficit; verbal learning of novel information – mild deficit in immediate learning and severe deficit in ability to remember the information following delay. Dr Field also discerned symptoms of post-traumatic stress and indications of a personality disorder. [20] Dr Field remarked that it was probable that some of the plaintiff’s “head injury related behaviour difficulties are superimposed on previous personality traits”. In her view, the plaintiff’s memory deficits were such that she would experience great difficulty in any form of learning and would experience difficulty “in an employment situation” because of the necessity for her to be highly reliant on long- term knowledge and skills. She remarked that persons who have suffered frontal lobe damage often turn to alcohol. Dr Field records that “the neuropsychological deficits evident on testing are entirely consistent with the injury” received by the plaintiff and, in particular, the problems described by the plaintiff in concentration, memory and learning. She did not think that there was likely to be further significant improvement “in terms of [the plaintiff’s] neuropsychological status.” In her view, it was probable that the plaintiff’s deficits were more pronounced after the accident than they were at the time of examination. She considered also that the plaintiff “has multiple problems and it seems likely that she will be in and out of employment in the future.” -- 7 of 16 -- 8 [21] Dr Field saw the plaintiff again at the beginning of March 2006 when she conducted further neuropsychological testing. None of the results of that testing caused her to vary her earlier opinions. The orthopaedic evidence [22] Dr Pentis, orthopaedic surgeon, gave reports dated 7 August 2001 and 6 April 2005 in respect of the plaintiff’s orthopaedic injuries. They were alleged to be soft tissue injuries to the cervical spine and chondromalacia of the patella of her right knee. He assessed the plaintiff as having a five per cent loss of the efficient function of her spine as whole. The soft tissue injury, in his opinion, would continue to cause difficulties with strenuous overhead activities and in strenuous sports. He assessed the knee injury as occasioning a 7.5 per cent loss of the efficient function of the right lower limb. In his opinion some degeneration of the knee was to be expected and he advised limiting work to jobs where the plaintiff was not required to bend, squat, kneel, negotiate stairs or climb ladders. [23] In a report of 2 September 2003, Dr Boys, orthopaedic surgeon, gave the opinion that the plaintiff suffered no “disability referable to the neck” and “no quantifiable impairment of bodily function referable to the spine”. Dr Boys was unable to find any reference in contemporaneous medical records to injury in the region of the right knee other than an “initial reference to abrasions in the region.” He concluded that there were degenerative changes in the patella of both knees, with those in the right knee being more marked than those in the left. He was unable to conclude that there was a causal connection between the right knee complaints and the injuries sustained in the incident on 22 December 1995. Other medical evidence [24] Dr Myers, consultant physician, expressed the opinion in a report dated 22 August 2001 that the plaintiff’s reported symptoms of concentration and memory difficulties as well as her being prone to temper tantrums and episodes of irascibility were likely to be consequences of her accident which would “trouble her long term”. He did not consider, however, that her poor memory and concentration should diminish her prospects of employment. [25] Dr Harris, plastic and reconstructive surgeon, noted in his report of 19 December 2001, that the plaintiff “has scarring of her right elbow and scalp”. That report makes no reference to any knee injury. None of the hospital records relating to the plaintiff’s treatment mention knee injuries, apart from abrasions. [26] Dr Marjorie Patel had been the plaintiff’s family doctor since about 1983. Her records and those of her practice contain no record of the plaintiff being treated for any problem relating to her right knee between 22 December 1995 and September 1998. [27] Notes made by a locum on 8 October 1998 record “painful right knee since fall on the kneecap when drunk 4 weeks ago. Since then sore and swollen … impression: chondromalacia patella.” Dr Patel described the condition as being an irritation to the growing part of the bone to which teenagers are susceptible. [28] An entry of 28 February 2001 records “drunk … hit head on sill in paddy wagon when car braked. Not knocked out… taken to Logan Hospital…” -- 8 of 16 -- 9 [29] Dr Boys explained the condition of chondromalacia as “a condition of softening of the patella cartilage as common in teenage children, particularly girls”. He stated that the complaint was more common in “heavier or obese people” or in persons with knock knees. The psychiatric evidence [30] Dr Ian Curtis, psychiatrist, in his report of 27 June 2002, concluded that the plaintiff had an 18 per cent whole person impairment as a result of the adverse affectation of her mental processes. He recorded that, as a result of the accident, the plaintiff suffered “severe cognitive and severe behavioural sequelae which will affect her future life course.” In his view, she was significantly depressed and organically depression prone. In later reports Dr Curtis confirmed that, in his opinion, the plaintiff would experience difficulties in employment and in anger management and would suffer from “personality problems.” He concluded that the plaintiff’s “deficits were probably more pronounced after the accident” and that she would have been “significantly disadvantaged attempting to return to studies” at that time. [31] On 8 June 2005, Dr Kazlauskas, psychiatrist, saw the plaintiff and provided her with a medical certificate for Centrelink. In that certificate, he diagnosed her as suffering from an anxiety depressive disorder associated with “fronto-temporal brain damage.” His prognosis was that the plaintiff’s symptoms were likely to persist and to deteriorate within the next two years. The symptoms listed were “headaches, concentration difficulties, anxiety, depression, disturbed sleep, panic from hypersensitivity to noise, irritability, anger outbursts”. [32] On 3 March 2006 Dr Kazlauskas wrote to the plaintiff’s solicitors, observing: “The ongoing court case was an extreme stress to her. She wanted help and support during this difficulty time … diagnosis here is psychological symptoms associated with trauma injury. Prognosis for anxiety symptoms is good. One of the main stress factors is the ongoing court case. The prognosis for the anxiety and depressive symptoms are good as one of the main stressors, again, is the court case.” [33] Dr Reddan, consultant psychiatrist, in a report of 5 May 2004, concluded that the plaintiff had made “a reasonably good recovery from the head injury” and that any residual problems should not prevent her from independent functioning. In Dr Reddan’s view, the plaintiff’s history did not support a significant disturbance of her personality arising from the accident. Dr Reddan noted that the plaintiff’s school records suggest that any deterioration in her school performance after the accident was short lived “with a significant improvement during the year, and there was certainly no evidence of any significant behavioural deterioration due to either a volitional problem or disinhibition.” [34] In Dr Reddan’s opinion the accident probably contributed to a generalised anxiety disorder the existence of which does not markedly impair the plaintiff’s functional capacity. [35] After viewing the plaintiff’s school records, and having regard to information supplied by the plaintiff and her mother, Dr Reddan observed that “the school -- 9 of 16 -- 10 records confirm that she was unruly, rather aggressive and tended to act out”. In her opinion, the records suggest “a picture of emerging personality problems”. [36] Dr Reddan regarded the plaintiff’s school records as important to any assessment of the impact of the injury on her development. She explained: “… you can only understand the impact of an event or accident or an illness on an adolescent when you consider where they are in their development, how their development was progressing beforehand and afterwards … and also what factors impact on their recovery or reaction to an illness or an accident. So, those sorts of records give you a somewhat more objective insight into that and because they are contemporaneously compiled, they are very useful. So, they cover both the psychosocial but also the academic or cognitive process of an adolescent.” [37] Commenting on the tests conducted by Dr Field, Dr Reddan observed that the plaintiff’s overall history, which included performance at school, did not support a significance disturbance of personality as a result of the accident. Dr Reddan concluded that the school records reveal an improvement in the plaintiff’s “overall personality functioning” including her reliability and sociability after year 10. In her opinion that history “actually excludes frontal lobe pathology of any significant extent”. [38] Dr Reddan concluded from her examination of the plaintiff that she had an “exuberant … flamboyant or histrionic personality” and tended to overstate matters. The plaintiff’s schooling and subsequent education [39] The plaintiff’s Junior Certificate reveals that she attained grades of sound achievement in English, citizenship, education and art, high achievement in speech and drama, and very limited achievement in mathematics, science and home economics. Her 1997 Senior Certificate shows sound achievement in English, art, drama, film and television and high achievement in dance. [40] The plaintiff’s assessment for the first semester of 1996 records that she achieved sound levels of achievement in English, human movements and film and television, limited achievements in art and drama and a high achievement in dance. In the latter regard it was said that the plaintiff displayed a positive attitude to the subject, was able to work independently and displayed coordination and flexibility in performance. The overall thrust of the report as to the plaintiff’s attitude and conduct was positive. The plaintiff’s second semester report was in generally similar terms. She again attained a high achievement in dance and was said to be a “highly motivated… conscientious and cooperative student”. [41] She was recorded as being absent for nine days in each semester and as being late on 28 occasions in semester 2 and 29 in semester 1. The school records for the years ended 1993, 1994 and 1995 reveal a student who was often disruptive, aggressive, un-accepting of authority, insolent and ill-tempered. [42] The plaintiff accepted, in cross-examination, that her school results in grades 11 and 12 were “pretty well equivalent to the results” she had achieved in grades 8, 9 and 10. She put this down to her taking more subjects she enjoyed in her final two years. -- 10 of 16 -- 11 [43] After year 12, the plaintiff spent from about February 1998 until July 2001 at the Actors Conservatory, a speech and drama school. Her objective was to obtain an “Advanced Diploma”. She said in her oral evidence that she failed to obtain the Diploma because she could not concentrate and remember her lines. [44] She commenced the course part-time but converted to what was essentially full-time attendance. Contrary to her evidence, she successfully completed the course but rejected an offer to stay on for a number of weeks in order to obtain a further, nationally recognised Advanced Diploma. Reasons given by her at the time for not studying for the Diploma included the existence of problems with a male friend. [45] Mr Hogan, the artistic director of the Conservatory, who had primary responsibility for assessing students, was not aware that the plaintiff experienced any difficulty in the two dance units completed by her. He regarded her as “strong in the physical side of acting” but said that she struggled with learning “heavy volumes of text”. [46] In August 2001 the plaintiff told Ms Bentley, an occupational therapist, that she found the practical components of her dance subject much easier than the theoretical, on account of memory and concentration difficulties. The plaintiff did not mention any problems with the physical side of course activities. Nor did she advert to any concern as to her ability to complete the course. Findings as to the circumstances in which the plaintiff’s injuries were sustained [47] I find the version of events set out in Mr Pain’s statement generally more probable than the recollection professed by Ms Grimes. She did not mention, in her record of interview, anything about the vehicle travelling on the wrong side of the road or fishtailing as it approached her residence. In that account, she reports Mr Pain as urging her to take the plaintiff into the house. She did not mention that in her oral evidence either. [48] If the plaintiff’s injury had occurred as a result of her accidentally stepping into the path of the car as it moved off, the conduct of Ms Grimes in not wanting to summon an ambulance or obtain assistance from adults would be curious indeed. Although only 15 years old, one can infer from her evidence that she had received training in resuscitation and was likely to have been aware of the risks involved in moving persons with head injuries. On her version of events, her friend had stopped breathing and had commenced breathing imperfectly after resuscitation. Nevertheless, Ms Grimes was content to have the plaintiff driven off to hospital by a reluctant Mr Pain. [49] Mr Pain’s admission that he had let the 15 year old plaintiff drive his vehicle seems to me to be plausible. I consider it unlikely that he would have invented background of this nature, particularly as it implicated him in the commission of an offence. His version, or at least the version of events which I accept, is consistent with his subsequent conduct in not taking the plaintiff in to her mother when he dropped her off at her home later that evening. If the plaintiff had been injured when she stepped into the path of his car as he drove off, there would appear to be little reason why he would not have wished to explain that to Mrs Edwards. [50] It is probable, in my view, that all three participants in the drama had been involved in some high spirited conduct immediately prior to the accident. Mr Pain described the plaintiff as “laughing and mucking around … being bubbly and making jokes”. -- 11 of 16 -- 12 He also described her as being “in a very effervescent and bubbly mood” and “showing off”. That was after he had let her drive the vehicle “a short distance just in and around Argonaut Street”. I find it probable that the plaintiff, being somewhat excited by the other activities just mentioned, jumped onto the bonnet of the vehicle as it commenced to move off. [51] It is improbable in my view that, under the influence of panic, Mr Pain, although having sufficient presence of mind to brake and stop the car, accelerated again whilst panic stricken. The car was moving quite slowly on his version of events. The plaintiff had been behaving in a high spirited fashion and although her jumping onto the bonnet may have occasioned surprise, it is unlikely that it would have produced the panicked reaction reported by Mr Pain. Given the conduct of the participants immediately prior to the incident, it is more likely that Mr Pain continued to drive the car after being aware that the plaintiff was on its bonnet. He could hardly have failed to notice her presence immediately after she was positioned there. [52] It may be that the plaintiff fell when Mr Pain braked but his version of events is that he braked for the second time after she fell. To conclude that the accident happened when he braked immediately on seeing her on the bonnet would be to speculate as to the likely course of events. Contribution [53] Apportionment of liability between joint tortfeasors is effected under s 6 and s 7 of the Law Reform Act 1995 (Qld). [54] Section 7 provides that the contribution recoverable from any person “shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage”. [55] In Wynbergen v Hoyts Corporation Pty Ltd,1 Hayne J, with whose reasons the other members of the Court agreed, referring to sections 7-10 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) said: “This and other apportionment legislation is predicated upon a finding that a person suffers damage as the result partly of the person’s own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the ‘relative importance of the acts of the parties in causing the damage’ and it is ‘the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination’ (italics added). No doubt also, as the Court said in Podrebersek v Australian Iron & Steel Pty Ltd ‘[t]he significance of the various elements involved in such an examination will vary from case to case’ and ‘the circumstances of some cases may be such that a comparison of the 1 (1997) 72 ALJR 65 at 68. -- 12 of 16 -- 13 relative importance of the acts of the parties in causing the damage will be of little, if any, importance.’” (Footnotes omitted) [56] By getting on to the bonnet of the moving car the plaintiff created an inherently dangerous situation. The extent of the risk of injury to which she exposed herself depended to a substantial degree on the actions of Mr Pain. He was not an experienced driver, as the plaintiff would have known from his age. He could have minimised the risk of injury to the plaintiff by bringing the car to a gradual halt. He did not do so. Also, his conduct in permitting the plaintiff to drive his car on a public road was likely to have encouraged her subsequent precipitate and dangerous behaviour in relation to the car. [57] In those circumstances, having regard to Mr Pain’s age and his position of responsibility as driver of the car, I find that the plaintiff and Mr Pain bear equal responsibility for the plaintiff’s damage. The plaintiff’s work history [58] The plaintiff commenced casual work at the Springwood Coles supermarket when she was 14. After her accident, she went back to work in 22 January 1996 and continued in that year and the next. She ceased working at Coles, it would seem, in order to concentrate on her acting course. After she finished school, she did some seasonal work at Movie World and was a cash register operator at a Big W store over the Christmas period in 1999. She also worked as a waitress for a period of between three and six months. The nature and extent of the plaintiff’s injuries [59] Mrs Edwards gave evidence that her daughter’s personality had changed from happy and fun-loving, before the accident, to sad and moody. Mrs Edwards’ evidence also was that after the accident the plaintiff had lengthy spells of anger and became more forgetful. [60] The plaintiff complained that after the accident she experienced continuing symptoms of severe headaches, neck and back pain, dizziness, anxiety attacks leading to dizziness, sleeplessness, difficulties in concentration and feelings of anger. Sleeplessness at night often caused her to sleep until early afternoon. [61] The plaintiff obtained a driver’s licence at age 18. In her oral evidence, she said she did not drive often because she gets “anxiety” and is “scared of accidents”. She has never owned a motor vehicle but has managed to attract speeding fines. [62] I have a general preference for the evidence of Dr Reddan over that of Dr Curtis and Dr Field. The evidence of the latter, in my view, gives insufficient weight to, or fails to properly take into account, important matters of established fact considered by Dr Reddan. The first of these matters is the academic performance and social conduct and attitudes of the plaintiff prior to the accident. [63] The second and more important matter is the evidence that the plaintiff’s grades, application and attitude seemed, if anything, to improve rather than worsen in the two years after the accident. That, as Dr Reddan pointed out, is inconsistent with mental or psychological changes resulting from frontal lobe damage. -- 13 of 16 -- 14 [64] The third such matter is that the plaintiff continued to do casual work at Coles for two years after the accident until she voluntarily relinquished her employment. The evidence does not suggest that she underperformed in that job. Additionally, she had sufficient application to complete her course at the Actors Conservatory. None of these matters sit comfortably with a conclusion that the plaintiff, to all intents and purposes, is unemployable and was unemployable after leaving school. [65] Dr Cameron’s evidence, which I accept, is that the plaintiff’s condition had stabilised within about two years after the accident and that any adverse effects of the accident were more likely to be experienced before the end of that two year period than afterwards. Dr Reddan’s opinion was to like effect. [66] Both Dr Weidmann and Dr Cameron are of the view that the plaintiff did have some minor residual disturbance of brain function as a consequence of the injury. Although I have little confidence generally in the accuracy of the plaintiff’s recollection and found her generally unwilling to make concessions against her interest, I accept that she probably has experienced some minor diminution in concentration and short term memory as a result of her brain injury. But the evidence does not support the conclusion that these matters make her unsuited for work as a check-out operator, console operator or work of a similar nature. [67] I accept also that the plaintiff has experienced a personality change in that she is now less lively and outgoing than before. There is difficulty though in attributing the entirety of this change, her sleeplessness and her consequential difficulty in starting the school or working day, to her head injury. The plaintiff, like most people between the ages of 15 and 20 or so, was exposed to a great many social influences and experienced physical and emotional conditions which may well have borne upon these matters. [68] Although the plaintiff suffered abrasions to her right knee in the accident, the evidence does not permit the conclusion that her present knee symptoms resulted from the accident. There are other, more likely causes apparent on the evidence. Nor does the evidence support the conclusion that the plaintiff’s frequent migraines are caused by her brain injury. Quantum [69] Asked if she had any ambition to be an actress immediately prior to the accident or whether there were other types of employment in which she was interested, the plaintiff responded, “I just wanted to get a full-time job after school.” She subsequently said that her options were to go to university or to get a full-time job “doing like customer service or retail, or in a clothes shop, or something”. She also said that she wanted to study performing arts at the Queensland University of Technology but had been unsuccessful in obtaining a place. Her OP score was either 21 or 23. [70] Although it was submitted, on behalf of the plaintiff, that one aspect of her economic loss was the loss of an opportunity to pursue a career in acting, no attempt was made to quantify any alleged loss in that regard. The reason for this, no doubt, was the impossibility of showing that a person with the plaintiff’s pre-accident capabilities would have established a career, in this difficult and unpredictable field of endeavour, which would have provided her with a better income than work in a more pedestrian but accessible field such as retail. The evidence of rates of pay -- 14 of 16 -- 15 adduced on behalf of the plaintiff was limited to pay scales for supermarket workers. [71] It was submitted on behalf of the defendant that if the plaintiff succeeded on liability her damages should be assessed in accordance with the following schedule: Pain and suffering and loss of amenities of life $37,500.00 Interest on $22,500.00 for 10 years @ 2% p.a. $4,500.00 Past economic loss: 4.5 years from August 2001 @ $100.00 per week, round to $25,000.00 Interest – after Centrelink effect $3,000.00 Loss of employer superannuation contributions (8%) $2,000.00 Impairment of earning capacity: $100.00 per week for 40 years (917.5) discounted by 20%, rounded up $75,000.00 Future loss of employer superannuation contributions (9%) $6,750.00 Past assistance: 5 hours per day for 5 weeks @ $16.00 per hour $2,800.00 Interest on past care (10% p.a.) $2,800.00 Future assistance No damages Past out of pockets $2,000.00 Future expenses: - Cassidy program: $10,000.00 - Dr Reddan therapy: $ 1,800.00 $11,800.00 Total $173,150.00 [72] Counsel for the plaintiff submitted that damages should be awarded as follows: General Damages $80,000.00 Interest $7,000.00 Past economic loss $122,263.75 Interest $42,792.31 Superannuation (Past) $7,335.83 Future economic loss $162,102.00 Superannuation on future economic loss $14,589.18 Special damages $2,025.00 HIC $709.85 Griffiths v Kerkemeyer $21,600.00 Interest $13,300.00 Future Expenses (Cassidy, Dr Reddan) $18,800.00 Total $485,417.92 [73] Having regard to my findings, any past or future economic loss suffered or to be suffered by the plaintiff is difficult to determine. Putting aside general damages, she is to be compensated for the loss of a chance that were it not for the accident her general employability, her prosects of obtaining better paid employment and her ability to stay in employment would have been improved. I accept that she has minor psychiatric impairment which has impaired her concentration, memory and motivation. I accept also that she is more prone to bouts of depression. No precise calculation is possible but damages must nevertheless be assessed.2 To my mind the 2 Fink v Fink (1946) 74 CLR 127 at 142; Naylor v Yorkshire Electricity Board (1968) AC 529 at 548; Smith v Topp & Anor [2003] QCA 397; and State of NSW v Moss (2000) 54 NSWLR 536. -- 15 of 16 -- 16 defendant’s damages calculation provides a sensible and reasonable solution to the problem. I accept the submission by the defendant’s counsel that an award of about $37,500 for general damages is appropriate. I also accept his submissions on past economic loss and past and future gratuitous care and assistance. In my view, the plaintiff’s claims were grossly inflated by failing to acknowledge that the plaintiff was not in need of relevant assistance except for a relatively short period after her return home from hospital and much of her need for transportation is explicable by the fact that she did not own or have the use of a car. [74] The award of damages must be reduced by 50 percent having regard to the assessment of contribution. I will hear submissions as to the formal orders to be made, having regard to the above findings. -- 16 of 16 --