Buckland v Biggenden Shire Council & Anor [1993] QCA 153

THE COURT OF APPEAL [1993] QCA 153 SUPREME COURT OF QUEENSLAND Appeal No. 11 of 1993 Brisbane [Buckland v. Biggenden Shire Council and Rae] BETWEEN: BRETT GRAHAM BUCKLAND (a mentally ill person by his next friend ENID OLIVE BUCKLAND (Plaintiff) Respondent AND: BIGGENDEN SHIRE COUNCIL (First Defendant) Appellant AND: KERRY RAE (Second Defendant) Mr Justice Davies Mr Justice Pincus Mr Justice de Jersey Judgment delivered the 4th day of May, 1993 Judgment of the Court APPEAL DISMISSED WITH COSTS INCLUDING ANY RESERVED COSTS TO BE TAXED. CATCHWORDS: Damages for personal injury - appeal against finding of there being no contributory negligence, and assessments of economic loss. Counsel: Newton for the appellant Crooke Q.C. and Smith for respondent Solicitors: Bradley and Co. for the appellant Finemore Walters and Story for the respondent Hearing date: 23rd April, 1993 THE COURT OF APPEAL -- 1 of 9 -- 2 SUPREME COURT OF QUEENSLAND Appeal No. 11 of 1993 Brisbane [Buckland v. Biggenden Shire Council and Rae] BETWEEN: BRETT GRAHAM BUCKLAND (a mentally ill person by his next friend ENID OLIVE BUCKLAND (Plaintiff) Respondent AND: BIGGENDEN SHIRE COUNCIL (First Defendant) Appellant AND: KERRY RAE (Second Defendant) JUDGMENT OF THE COURT Delivered the 4th day of May, 1993 The respondent was seriously injured on 22nd April, 1988, when a motor vehicle he was driving collided with a multi-tyred road roller on a section of new road-work on the Isis Highway, between the bridges over Rocky Creek and Brigalow Creek. The learned trial Judge found the appellant responsible, and set damages at $875,798.45. The Judge held the appellant liable on the basis of its negligence as the local authority responsible for the road-work. It had been constructing the new work for about three months up to the date of the accident. About two weeks before the accident, the respondent had travelled over the -- 2 of 9 -- 3 relevant piece of road. At that stage, there were a number of warning signs erected in the vicinity: an 80 kilometres per hour speed sign 400 metres from the beginning of the work, a sign nearby reading "Traffic Hazard Ahead", a "Road Plant Ahead" sign 300 metres from the beginning of the work, a 60 kilometres per hour speed sign 200 metres from the beginning of the work, and 100 metres ahead, a "Flagmen Ahead" sign. By 22nd April, all signs had been removed except the "Traffic Hazard Ahead" sign. By then, work had progressed to its final stage, with rolling of the newly constructed surface in order to compact screenings into the bitumen. The driver of the roller, Mr Griffin, gave evidence which the Judge accepted, that he saw the respondent's vehicle come over the bridge in the direction of the roller. It was moving slightly to its left, then veered off to the right. It then slewed back over the road to the left and collided with the roller. The Judge accepted evidence about the presence of loose gravel on the surface of the road, and evidence from a police officer of markings near the end of the bridge generally consistent with the behaviour of the vehicle at that stage as described by Mr Griffin. The only witness with a recollection of how the accident occurred was Mr Griffin. The Judge inferred from that account, taken with the other evidence, that "beyond doubt ... Brett Buckland lost control of the car as it entered upon the new roadwork". At the time of the accident, there was no limitation of speed below 100 kilometres per hour, and the Judge found that the respondent was travelling at about that -- 3 of 9 -- 4 speed. He may well have related the "Traffic Hazard Ahead" sign to the roller itself, and as the Judge observed, "the fact that the road signs apart from the sign 'Road Hazard Ahead' had been removed might well have suggested to him that the roadworks were complete and that normal driving at 100 kilometres per hour was safe and proper in the circumstances". It was plainly open for the Judge to conclude, as he did, that the defendant was negligent in not maintaining an adequate set of road signs. Although Counsel for the appellant criticised certain aspects of the Judge's approach to that finding on liability, he limited the challenge on liability to the Judge's conclusion that the respondent had not been shown to have been contributorily negligent. His findings on contributory negligence were: "Contributory negligence is pleaded, but the only aspect of that to which the defendant can point is the suggestion of excessive speed. Mr Griffin is the only person who can fix the speed of the plaintiff's vehicle and he estimates 100 kilometres per hour. In the circumstances, where the defendant had removed the speed control signs the night before, there was absolutely no indication that travelling at 100 kilometres per hour on a highway was in any way dangerous or in any way showing a lack of care for one's own safety. I am not satisfied that any contributory negligence has been proved." Counsel submitted that some contributory negligence should have been found against the respondent, on the basis that he entered upon new work too fast after the bridge and the "Traffic Hazard Ahead" sign. But once one acknowledges that there was no speed limitation below 100 kilometres per hour, so that the respondent was not exceeding the prescribed limit, and that he might well fairly have interpreted the single warning sign as referable to the roller, the Judge's approach is seen -- 4 of 9 -- 5 to have been justifiable and should not be disturbed. The respondent, then almost 18 years of age, suffered a major head injury. He is now blind in his right eye, and has gross deficits in the control of his hands: he is clumsy. He also has problems with his balance, referable to instability in his right ankle because of the head injury. He has a substantially impaired short term memory, and generally impaired frontal lobe functioning. He is slow with his speech, tires easily, and sometimes behaves inappropriately. The respondent's father is a farmer. The respondent was always interested in the land, and was attending Dalby Agricultural College at the time of the accident. The Judge accepted evidence that the respondent was a highly motivated person likely to succeed on the land. As a result of the accident, he was rendered unemployable. The Judge assessed damages for reduced earning capacity on the basis that the respondent would have successfully completed his agricultural course, become a wool classer for some five years, and then taken on some other form of rural or pastoral work. As to past economic loss, the respondent claimed $69,449, calculated from a wool classer's basic award plus superannuation, but excluding any increment for overtime, calculated from 1st January, 1990 (when the respondent might have been expected to commence work) to trial. Because the respondent intended to spend six months overseas as an exchange student, the Judge excluded a 14 week period at the beginning of the year and allowed only a 20 week period for the latter part of 1990, which reduced the claim to $55,000. -- 5 of 9 -- 6 Counsel for the appellant submitted that the Judge was nevertheless unduly generous to the respondent. He referred especially to evidence from a Mr Montgomery to the effect that by the time the respondent would have been looking to join a wool classing team, following his return from overseas, it would have been difficult to obtain a position because the teams would by then have been organised. That may however ignore the possibility of the respondent's having made advance arrangements, or gaining a position through friends or contacts in the district in which he had grown up on his parents' property. There was also criticism of the number of weeks set by the Judge, as being too generous to the respondent. The Judge did however make it clear that "wool classers can reasonably expect to earn considerably more than the award", and that the plaintiff "would have attracted additional work and remuneration from employers who would be inclined to value hard work and diligence". The Judge regarded the respondent as having had exceptionally good prospects in rural work. Taking all features into account, his assessment of this component should not be varied. As to the component for reduced earning capacity in relation to the future, the Judge, allowing for the vicissitudes of life, proceeded on the basis of a working life to the age of 60, and then applied a loss of $450 per week (the wool classer's award), which led to a component of $405,000. He considered that figure to be "as realistic as possible". He pointed out that "there may well have been times when he would have earned much, much more than he would earn as a wool -- 6 of 9 -- 7 classer if he were to work on his own property." He added that while "there would certainly be times when he would earn less", "over his lifetime it would seem to me to be a reasonable figure to work from". Counsel for the appellant submitted that the Judge should have adopted a shorter period, say to 55 years of age, in order properly to reflect contingencies. But the Judge did approach the matter with obvious care, and he gained some support from the evidence of three farmers as to their earnings in the district and normal working spans. The challenge to this component, likewise, should not succeed. While working to the age of 60 was fairly generous to the respondent, the Judge was influenced by the very favourable view he took of the plaintiff's prospects (for which there was ample foundation in the evidence about his attitude and achievements while at school and in college), and was entitled to rely on that assessment in selecting what might otherwise be considered a generous period. The remaining challenge concerned the Griffith v. Kerkemeyer component. The Judge accepted the evidence that the respondent has needed and will need "someone to keep an eye on him on a very regular basis". He elaborated: "Dr Hirschfeld, whose evidence I accept, suggests this should be done both night and morning. He simply needs to be prodded to get on to do things. He needs to be checked regularly to see that he is not wasting his money. He needs to be checked regularly to see that he is eating, and eating proper food. This is a constant task that seems to me to be realistically assessed as involving some 10 hours per week. In the past, of course, during the period of hospital care and in the period of rehabilitation care has been much more constant than that and there is no challenge to the amount that is claimed there." -- 7 of 9 -- 8 The challenge in this Court did not concern the hours claimed, but was confined to the rate allowed. The Judge relied on a Domicare rate which included an administrative fee related to the work done by the agency to organise the assistance. Because in this case the assistance has been rendered by relatives, and because that is likely to continue to be the case, Counsel submitted that that component of the fee should not have been included. The Judge assessed the claim for the past at $77,515. Deleting the administrative fee would reduce that component by $13,475. In respect of the future, he allowed $123,125. Ignoring the administrative fee would reduce that by $29,550. The applicability of such a component in applying a "commercial rate" was not considered by the High Court in Van Gervan v. Fenton (1992) 66 A.L.J.R. 828, and there are grounds for arguing that where services are rendered by family members, and the related administration of small compass, that such a component, particularly referable to the work of an agency, should not automatically apply. However this is a case where some organisation was necessary in the past, and will continue to be necessary. It is conceivable that at some time in the future, care by relatives may not be available, and that the respondent may need to resort to an agency. The evidence of the administrative fee charged by Domicare was the only evidence of such a charge put before the Judge and it was put before him by consent. Although another may have been persuaded to allow only a reduced fee of that character in respect of the past, the point is that even if one deleted the -- 8 of 9 -- 9 whole of that component for the past, the reduction in the award would be only by $13,475, and that would be disproportionately small to warrant interference with this substantial award (cf. Elford v. FAI General Insurance Co. Ltd, No. 1491 of 1985, unreported judgment of the Court of Appeal given on 1st April, 1992). None of the grounds pursued on appeal for interfering with the award has been established. The appeal should therefore be dismissed, with costs, including any reserved costs, to be taxed. We were asked to order that the costs of the appeal be taxed on a solicitor and own client basis, as were the costs of the trial because of the circumstances of an offer, but we consider that insufficient to warrant ordering that the costs of the appeal be taxed otherwise than on the ordinary party and party basis. -- 9 of 9 --