Buckland v Biggenden Shire Council & Anor [1992] QSC 432

~\ State Reporting BureaU~~'d~ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Cro·wn. Copies thereofm~st not be made or sold - without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION .. ~- ~ .. DEMACK J .; ;- No 21 of 1989 BRETT GRAHAM BUCKLAND (a mentally ill. J;>erson) by his next friend ENID OLIVE BUCKLAND Plaintiff and BIGGENDEN SHIRE COUNCIL First Defendant and ' KERRY RAE Second Defendant BUNDABERG .. DATE 26/11/92 JUDGMENT - 1 --.t..Lt.-,Tht..f..!t::e Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 ·. ~· .. _; -- 1 of 22 -- ------------ --- 261192 HIS HONOUR: Brett Graham Buckland was born on 12 May 1970. At about 8.30 on the morning of 22 April 1988 he was injured in a motor vehicle accident. At that time he was driving a Falcon sedan along Isis Highway. Between the bridges over Rocky Creek and Brigalow Creek his vehicle came into collision .with a multi-tyred road roller owned by the defendant. Both Brett Buckland and his passenger sustained head injuries and have no memory of the accident. It is clear from the answers to interrogatories and the evidence before the Court that the first defendant had been performing roadworks on this part of the highway between the two bridges on 11 February 1988 until 21 April 1988. During that time various road signs had been installed on the eastern side of Rocky Creek Bridge. There was a sign that read "Roadwork One Kilometre Ahead" situated a kilometre east of the beginning of the roadwork. At a distance 500 metres from the roadwork there was a sign that read "Roadwork Ahead". At some 400 metres from the beginning of the roadwork there was an 80 kilometre per hour speed sign~and near that sign a sign that read "Traffic Hazard Ahead". Three hundred metres from the beginning of the roadwork there was a sign that read "Road Plant Ahead". Two hundred metres from the beginning of the roadwork there was a 60 kilometre per hour speed sign and 100 metres ahead a "Flagmen Ahead" sign. On 21 April the foreman at the job thought that the works were completed and all the signs,· except the one that read "Traffic Hazard Ahead",were removed. That particular sign had not been erected at the beginning of the construction work, but bad JUDGMENT 2 10 ~ 20 i'-- c 30 40 50 60 -- 2 of 22 -- ,be~n erected during the course of that work. I am not clear from the evidence as to exactly why it remained after the others were removed, but that seems to have been more fortuitous than by design. At the end of work on 21 April the bitumen surface had been laid and the screenings spread over it and the screening rolled into the bitumen. The consulting engineer who was not called to give evidence by the defendant gave instructions, apparently on the morning of 22 April, that the road should be rolled again. The general foreman of the first defendant, Mr Rae, who has been joined as second defendant, gave instructions to Mr Griffin to do two passes of the road. Both Mr Rae and Mr Griffin were called to give evidence. They expressed the opinion that further work on the road was not necessary. The only reason why the engineer would have given the direction was to ensure that more of the screenings were compacted into the bitumen. It is implicit in all the 1 evidence that the purpose of rolling the screenings into the ~, I bitumen is to compact the screenings into the bitumen which gradually sets and holds them in place. There has been an attempt in the evidence to try to describe how much of the screening remained loose on the surface of the road as at 8.30 a.m. on 22 April 1992. It's obviously extremely difficult to define this in any sensible way. As Mr Rae said, once vehicles begin to drive over it they tend to embed and to clear screenings from the actual wheel tracks. - This means that in the early stages -of the use of the road JUDGMENT 3 ./'.':'o, . ···.- . 1 10 20 30 40 50 60 -- 3 of 22 -- 261192 there is an area of screenings between the wheel tracks. There is also another area of screenings on each side of the road on what might be called the shoulders, and there are·the screenings in the centre of the· road until they are either swept or rolled or otherwise disturbed. If there is any difference between the evidence of the plaintiff's witnesses and the evidence of Mr Rae and Mr Griffin about the· amount of screenings on the road, I accept the · witnesses ,for the plaintiff ., in .preference ~to the 'wi,tnesses . for . the , defendant. The fact that the engineer was not called encourages this finding. I am satisfied that as at the beginning of work on 22 April 1988 th'ere was still roadworks in progress between the Rocky Creek Bridge and the Brigalow Creek Bridge. The works in progress were the·· further rolling of the screenings to compact them into the bitumen. I am satisfied on the evidence that the signs which would have given warning of the presence of roadwork and of the presence' of loose screenings were not in place. I am.satisfied on the evidence that the general speed limit on the Isis Highway of . lOO· kilometres per hour was not controlled in any way by temporary speed signs. I am satisfied also that from the western end of the Rocky Creek Bridge the surface of the new roadwork had loose screenings on 1 ; .10 20 30 40 it. The surface of the Rocky Creek Bridge, itself, consists 50 of concrete, although photographs suggest some·light spread of bitumen in . :, patC'hes. _ .. Generally, however, the surface on the bridge was at tbe time · conc:r::ete. JUDGMENT 4 60 -- 4 of 22 -- , i t&>elf. I am satisfied that the shoulders in that stretch of the highway between the two bridges that were beypnd the bitumen were not traffickable. To the left-hand side in the line of the plaintiff's travel there was a cutting and between the edge of the bitumen and that cutting there seems .to be something of the order of a metre of what appears in the photographs to be rather loose dirt. On the other side of the. roadway in the direction of the plaintiff's travel there were much wider shoulders, but these had not been levelled off and, particularly, in the vicinity of where. the collision occurred. there was a large pile of boulders on the shoulder. The responsibility of a local authority which performs roadworks has long been established. It's necessary to refer only to two sentences from the judgment of Dixon J as.he then was in Buckle v. Bayswater Road Board (1936) 57 CLR at 259 at page 283. The words are: "Interferences with the highway which in themselves would be unlawful.to a stranger are as a rule authorised acts when done by a road authority, but a road authority in doing them must take due care for the safety of those using the highway. It is not protected if it creates dangers which reasonable care and skill could avoid." This passage has been often enough referred to. In the absence of signs what dangers w~re there f<?.I'. a motorist approaching in the direction in which Brett Buckland was travelling? ~r King, who was an experienced enginee~ gave evidence which I accept. It .is clear enough from his evidence JUDGMENT 5 10 20 30 40 50 60 -- 5 of 22 -- ---- -;:-------.-- ~-- 261192 and, indeed, from common e~perience~:..' that loose· screenings on '-• : '• the road have a significant effect upon the performance of a i. motor vehicle driven over the road. He, particularly, at page 131 of the transcript, pointed out that if there are "loose screenings the longitudinal component of the grip of the tyres ' . ,. ' ·' _. . ceases to have any effect, so that the wheels will lock and· the amount of restriction on sideway·s movement is considerably reduced. He says at page 131: - - "If the rear wheels lock the tendency is for the vehicle to be influenced_·by wbatever external forces are there, whether slope or wind or some slight movement of- the car, and the general tendency is for the back to slew sideways". - .. He pointed out that there would be a significant difference in the handling of the motor vehicle between travelling on the . ~ . ~ - .· concrete surface of the bridge and coming onto the gravel screenings at the beginning of the new work. In the absence of some warning that there was new work ahead or loose stones ahead a driver would not become aware of the fact there were the loose stones until he was well onto the bridge. Mr King makes this observation from his own inspection of the site and supports that with photographs he took recently. It seems to me that this evidence is acceptable and in accordance with common experience. He therefore postulated a situation where the driver, Brett Buckland, would have been confronted somewhere at about the middle of crossing the bridge with the appearance of some loose gravel ahead of him. -- . By that time the road roller which was working at a point about 140 metres from the Rocky Creek Bridge would clearly JUDGMENT 6 1 • 10 r20 ·'--....--, II (' \_. 30 40 r ( \_, I 50 60 -- 6 of 22 -- hav.e b~en visible as it was well lighted. The sudden --- observation of a road surface of a different kind ahead of him may well have caused so~e change in driving, possibly by application of the brakes. If the brakes were applied at that point they would grip normally, but thenupon reaching the loose gravel there wouJd be quite a sudden change in the behaviour of the vehicle. This theory has some support from the evidence of Sergeant Mergard who was the inspecting police officer. He described a mark in the gravel about a car length from the western end of the bridge. When Mr King examined that evidence·he was not able to draw conclusive opinions from it because he had not, __,__ himself, seen,the mark. However, it did appear consistent ____ _; .. / ~- ) with some movement in the left-hand wheels of the vehicle. Sergeant Mergard said that that particular mark was lined up with a group of four marks which were consistent with a sideways slide of the Falcon into the road roller. These marks began at the right-hand edge of the bitumen in the plaintiff's line the road roller which was then travelling in about the centre of the left-hand part of the carriage way. It is, of course, always dangerous to try to reconstruct how accidents have happened and Mr King was well aware of this as no doubt was Sergeant Mergard. However, it did appear in the light of Mr King's experience and the evidence of Sergeant Mergard that a possible account of the incident was that at about the middle of the bridge Brett Buckland applied his brakes, that the entry of the vehicle onto the gravel caused a JUDGMENT 7 ' 1 ' 10 20 30 40 50 60 -- 7 of 22 -- 261192 .: :" . ' ' change in the behaviour of the vehicle, the brakes were then released as there were no signs of skid marks-over the next 100 metres or so of road. However, the driver lost some . '. control of the vehicle as it left the bridge and it went onto its incorrect side of the road. He then attempted to correct this, overcorrected and put the vehicle into a sideways slide. As I say, this understanding of how the accident might have happened is something that may be inferred from the evidence of Sergeant Mergard and Mr King. The only person who saw what happened and who has any memory of it is Mr Griffin. Mr Griffin was driving the road roller and his account is very similar to that which is postulated by Mr King on the basis of Sergeant Mergard's evidence. He saw the vehicle approach when .· ' ' ........ it was on the bridge. He was asked at page 143: "In his direction of travel he has come off the bridge.· You have·checked the. front and looked back. To which side of the road is he going; to his right or his left?-- His left. He was going slightly to his left at that stage when he came off the bridge. Then what did you see?-- He veergd off to the right-hand side of the .road looking as if he was going to pass the roller." Then at page 144 he describes how: "He has turned the car back towards the left-hand side .of' the road' causing the car to go into a complete sideways drift in the opposite direction and come back across the road. " .. The colli'sion followed. JUDGMENT Vfv. 8 .. 1 • 10 20 30 40 50 60 -- 8 of 22 -- It .seems to me beyond doubt that Brett Buckland lost control of the car as it entered upon the new roadwork. It seems to me that the evidence of Mr Griffin is consistent with the hypothesis of that Mr King had drawn. The danger to which Mr King points in having no warnings of.the presence of different kinds of road surface is borne out. In the circumstances,. it seems to me that there has been a failure to maintain an adequate warning of the continuing roadwork so that Mr Buckland was left unprepared for the change in the surface. When he came upon the screenings unprepared he lost some control in braking. This followed some slewing of the vehicle, overcorrection and impact. In ~, those circumstances I am satisfied that the plaintiff has . ~ ) ·~ established that the first defendant is guilty of negligence in not maintaining an adequate set of road signs in the circumstances that prevailed on the morning of 22 April 1988. This failure to maintain that adequate· set o.f ·road signs amounts to negligence . Various other matters are pleaded, but they do not se~m to.-.me to have been established. There is certainly no suggestion that anything that Mr Griffin did in any way caused or contributed to the accident. It was simply the fact that the plaintiff came upon this area of roadwork unprepared for what he met. It is beside the point that he travelled over the . 1 10 . 20 30 40 road two weeks before because the roadworks then would have. so been in a very different condition. Indeed, the fact that the road signs apart from the sign "Road HazardAhead" had been removed might well have suggested to him that the roadworks JUDGMENT 9 60 -- 9 of 22 -- 261192 ... were complete and that normal driv,ing at 100 kilometres per hour was safe and proper in the circumstances. 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 '· kilometre~ 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. sat.isfied ,that any contributory n_egligence has been proved ... The injurie~ that were suffered by Brett Buckland were, first of all, a fractured right tibia. This has healed without leaving any symptoms. He suffered severe bruising around his right eye aiJ,dhas been. left blind in l:l.i.s right eye. He also sustained a major,. head injury. His period of amnesia is --:. various~y.described, but ne said in evidence that he could not rememper .events up to a fortnight before 22 April and that his first memory· afterwards was when he .was in the Princess Alexandra Hospital which is at least two months after 22 April ... Because of his brain damage he has a· loss of sense of smell. He, himself, said he could now smell some things, but this seems to be doubtful. His loss of a sense of smell is, of JUDGMENT 10 10 20 30 40 (' ( ~ 50 60 -- 10 of 22 -- ,co~rse, a serious loss because he no longer has the normal warning facility when handling ·substances which- may be·· dangerous. He has instability in his right ankle ~~tause of his head injury and some loss of balance. It appears that he does fall off a bicycle that he ·rides rather frequently.; He has also gross deficits in proprioception of his hands. When this is coupled with his loss of sight in the right eye, this is a serious loss which leaves him quite clumsy with his hands. He was asked questions about using a spanner on nuts and he had to agree that this was a very'difficult task. At the time' when he was giving that evidence I rather assumed, not havfng read all of the medical reports at that stage~ that this was because of his monocular vision. However, it is clear from the testing that was done by a physiotherapist, P Marshal!, that he has gross deficits in proprioception of hands; Bearing in mind that from an early ~e had been interested in mechanic.al things and in ·repairing motors, this loss is a ' 10 20 30 very severe one because he will not be able to find things' · 40 (T', :1 i 1 with his hands the way that we become accustomed to in daily J• life. He has a significant loss of short-term memory. This is demonstrated day by day·in his inability to recall-the need to do things. This has· been-illustrated in the evidence-in various ways. For example, his father who is a farmer spoke of how he had him do certain slashing work, the slasher needed to be serviced every hour and Brett would simply drive on without recalling the need to do thfs unless he was remii:ided JUDGMENT 11 50 60 -- 11 of 22 -- - -- -----;;-·------:c-:c--- 261192 ~.' ,_ J each hour of the task. He has impaired frontal lobe functioning. This is demonstrated.in various interactions he has with people. He appears to be slow with his speech. He is tired and tires quite easily during the day. He is unemployable. The only suggestion that any of the medical experts make is that he may be able to perform some tasks within a very sheltered situation. However, such activity is entirely unremunerative in any practical terms because the supervision has to be virtually constant. This would mean that whoever was supervising him could do very little else. This means in practical terms that he has no capacity to earn any sum at all. Brett's father is a farmer and he encouraged his son vety early to develop an interest in the land. This led to his pursuing a·course of study at the Isis District State High School which included agricultural studies. The teacher at that school who·was responsible-for agricultural studies, Mr Hill, gave a reference-on 10 September 1986 which includes the following: "He is a courteous, co-operative young man who takes pride in both his appearance and his work. As a student of agriculture he has demonstrated diligence and a sound understanding of the theoretical basics of the subject. He has also displayed good initiative and understanding in his practical actiVities with a-conscientious and mature approach at all times. Brett is an enthusiastic agriculturist with a desire to· sricceed~" JUDGMENT 12 10 20 30 40 50 60 -- 12 of 22 -- ~. L> C') ~. ; ! • G l ) ' - .That document is at page 47 of the documents in support of economic loss and future care. After leaving school in grade 11 Brett went to the Dalby Agricultural College. There he was 11th; in a class of 59 inthe assessment. at the end of first seme·s::ter in 1987 · e.nd 9th in a class of 59 in the assessment at the end of second semester. The material from that college contains one observation in relation to a practical work report, this is part of Exhibit 10 and is a practical report number 2768 given by an instructor who has only initialled the report. It is in respect of the crops routine and he has scored Brett 10 out of 10 for each of the assessments and commented: "The most motivated, keen and conscientious student I have yet had on routine." The principal of the Dalby College, Mr Lovelace, gaveevidence and he expressed the view that Brett had the capacity to complete the· course successfully and to go on to become a wool classer through attendance at a course at the Warwick College. It seems that Brett had expressed interest in following that particular calling. His father was keen to support him financially. He had family and friends on the l~nd, particularly in the Darling Downs and Western Darling Downs area. I accept that both his father and mother were keen for him to succeed on the land, that he had the interest and skills in working on the land and the capaci tx_to work hard and on the JUDGMENT 13 1 ' 10 . 20 '') 30 40 50 60 -- 13 of 22 -- ----- ------~---- - . ' ( 261192 balance of probabilities to succeed. He had shown int~rest. in doing six months exchange studentship, possibly i:p. C~nada._ This is a regular exchange progranune that one of his cousins had been involved in and it seems likely that had _he not been injured he would have gone on that. 10 So far as_wool classing_is concerned, I accept the evidence of Mr Montgo~ery that if he had become qualified in about 1990 he would have ~ad a good prospect of obtaining employment. Apparently a · pattern of life for young people w):lo want to go 20 on the land_ includes t~e .study of wool classing, working· in that, f()r some f_ive xe.aJ;_s and then turning one's hand to some other aspect of rural workor pastoral work in another area. As Brett had never e11t;:ered into a workforce in a remunerative 30 fashion, _it is difficult to assess both his past and future econOJ;nic loss. However, I am satisfied that his proven interest e3:nddemonstrated ability m~he assessment via the process of wool classing a realistic one. 40 Tables have been submitted to show what he would have earned prior to the date of_trial as a wool classer. These have been critic~ped by Mr Newton,and properly so because they do not include any allowan~e for a time overseas which would not have been a remunerative time. However,_ the other criticism that so Mr Newton has made, namely that they Pr.oceed on a 52 week year is not_ in_ my v~ew sustai_nable. '!'he reason for this is that they are strictly based on the award and Mr .Montgomery has JUDGMENT 14 60 -- 14 of 22 -- m~de it clear that wool classers can reasonably expect to earn · considerably more than the award.· If Brett was able to attract the kind'of praise from teachers to which I have made reference, it seems to·me more likely than not that he would have attracted additional work·and remuneration from employers who would be rnclined to·value hard work and diligence. Consequently, I am satisfied that the rate that is taken in the schedules that are prepared is reasonable. However, for past economic loss, it's necessary to take account of the time as an exchange student. I will do ' ' ; this by taking out the first period that's referred to where the net income is $6,597.15 and allow only a 20 week period :0 for the latter part of 1990 .' ·with this deduction I should· allow $55, 000 as past economic loss and I shall allow inte·rest· in the amount of $9,075 in respect of.that. ., ' ID So far as the future is concerned it seems to·me that the . . approach through the potential earnings of a ~ool classer {~ · as realistic a figure as possible. -A:;; Mr Montgomery indicated with the ups and downs that occur in the rural'sector; there· will be occasions when people who have specific:skills that are of abiding value in the pastoral industry will seek to exercise those skills if they cannot earn better money on their own property or in other ··wdrk. If they have the skill ~as a wool c1asser and there· · ' I 10 .•. 20 30 40 is that work available, then t'hat is a reasonable indication 50 of a sustainable level of income. There may well have been times when he 'wo'uld have earned much~ much more th~m lie would: earn as a wool classer if he were to work on his own property. JUDGMENT 15 60 -- 15 of 22 -- ~-, ~.-. -.-~- ----,--~-- 261192 ~ • • .:-. I' ·-: '·~, ·There would certainly-be-times when he would earn less. However, _over his lifetime it_ would seem-to me.to be a reasonable figure 1 to-work from. In the claim Mr -Crooke formulated he allowed a working life t:o .:·50. Mr Newton suggested there should be some discounting of that for what he calle~-the vicissitudes of life .. Although this_phrase is rather tossed about it does not: refer simply to matters of whim. There; are many instances where there are things discernible in the evidence which indicate that a person is. unlikely .to work to 65, which is the normal retirement age in our community for males. There are also matter:s· _whi_ch are so notg_rio?s that judicial notice may be taken. Here .there were three farmers called.and none of them suggested in any. way that 6,0 was an unrealistic age as a 1 imi t to working life. ,There is qertainly no basis of taking judicial notice that.farmers,-customarily retire much earlier than that.-. Consequently, I accept Mr Crooke's claim for a working lifeto.60. Iwill allow the figure of $450 per week as th~. susta,:inab1e, income which has :bQQll lost and allow '$405,000·£or future economic loss. Ther~_js a substantial claim for services rendered gratui t.ous~y .. The law in this respect. has been considerably clarified by-the rec~nt,High Court .decision~of yan Gervan v. Fen ton delivered~. on_, 28 _October 1992. Here there . is no challeng~ to tJ:?.e. hours that. are claimed in respect of the past, neither is there any challenge to the basis for assessing the amount of care needed in the future. JUDGMENT 16 10 20 30 40 50 60 -- 16 of 22 -- c~ [D The present situation is that Brett needs someone to keep an~ , ' eye on him on a very regular basis. Dr Hirschfeld, whose· evidence I accept, suggests this should be done bofh 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 chedted 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. The debate in this case concerns the High Court's preference for a commercial rate. Mr Crooke has argued·that the commercial rate is the rate that is exemplified-by-the i 10 .20 Domicare letter. That includes not simply the amount that is ;·. 30 · ' paid to the actual carer, but the Domicare ·fee which enables :· the service to be provided. Mr Newton submitted that at the:···· [[: most it is the actual sum that is paJ.d to the carer that . should be treated as the commercial rate. I am not concerned with what may happen in other cases, but ·only concerned·'·wi tli 40 c) the situation here. Here Brett has had care provided to him by his father, byhis mother, by his sister, by Sharon Noe,who is simply a friend of the family and an acquaintance·through·. church circles who has had him as a boarder in her house,and also by his fiancee Kimberley Metcalfe~ There have also been ·so other relatives and friends who from time to time have kept' an eye on Brett. JUDGMENT 17 60 • I -- 17 of 22 -- 261192 'Kimberley and Brett are to be married this weekend and no doubt as at present Kimberley is the one who provides. this daily supervision. As the majority judgment in the High Court in Van Gervan observed, assessing relationships in which a plaintiff receives considerable support in daily living is ''very difficult. Certainly, it is cormnon observation that the strain of caring for a person with brain damage may well break a marriage and it certainly _is not a prude.nt course to assume that for the rest of his life Brett will receive daily supervision from,Kimberley. ,Neither can it be assumed that the members of his family will all outlive::; him and provide the care that he requires. It seems to me that because here there is a diverse group of people.: who have cared for him and who in . the future. wi 11 provide car~ ,~the ,_commercial. rate that has to be appl~ed is the ra,:t:Je th,at is indi"cated in the Domicare letter.·· It's only· such a,rate that ensures that the defendant meets. the need that·Brett hasi ·through funds that are adequate~ to ensure his . " careful·oversight for the balance o:E his life. The other area of dispute in this regard was whether there should-be some discounting of the life expectation found in The Australian Life Tables. Dr Hirschfeld says there will be no diminution of life expectation, so there is no basis for discounting what is a statistically reliable figure. I will therefore allow the claim in respect of Griffiths v. Kerkemeyer matters in the figures that Mr Crooke has set out; that • is $771515 f·or ·the· past with $18,603 interest and $123,125 for the future. JUDGMENT 18/ 10 . 20 30 40 50 60 -- 18 of 22 -- Dl ) [) 0 I:' 1' l/ I }I'-. 261192 'Special damages inclu?-ing interest were agreed in the amount .of 1 $60,230.45. Pain and suffering with brain dmnage for the plaintiff is always a difficult matter to assess and to a large extent it must depend on the degree of insight that the person has as to ~~ ;:; what has been lost. Here it seems to me Brett has a clear understanding of much of what he has lost, although he does try to hide that. . 10 As Maureen Field, neuropsychologist,. has· observed in he·t report of 31 August 1992: "He is a handsome young man with evidenc~ of disability~ This tends to mask his problems." His natural environment is the rural community and in that community the ability to get on with a job is something thatis prized. He simply cannot because of his brain damage get on with any job and consequently for the rest of his life he will' be subjected to uninformed scorn and ridicule.' He ·clearly' 20 still retains dreams about some kind of :r:·ural life ... · He spoke·, 30 of wanting to own and work a dairy farm,·. but his capacity to· do this is clearly lacking. He would simply never ~inish the· milking, but he still will dreamand hope and .will live with the daily frustration of U?~ulfilled dreams. He has the loss of sight in his right eye and the loss of balance and the 40 difficulty with his hands. He does have arguments with his fiancee and these have been described as quite angry, so that quite clearly he is not in any way a person whose brain damage has left him in a kind of detached euphoric state. He is . - - ~ someone whose suffering is, no doubt, masked but nonetheless very real and damagesthat are awarded ~or piin and sufferin~~ for loss of amenities, must be substantial." For this head I wi.ll allow $95, 00{) with interest on $25,000 which I assess at $2,250. 50 It is beyond doubt that the judgment must be administered by so 19 JUDGMENT -- 19 of 22 -- the Public Trustee. :rt· seems to ine here that it wonld be appropriate in the order that the solicitors .-acting for the next frien,d repay the amounts that various hospitals and other medical people have owing to them. On my calculation this amounts to some $40,630.55. The balance of the special damages which, in fact, are the items that attracted interest were all expended by Brett's parents and that part of the judgment·should, no doubt, go to the next friend. So far as the past allowance ·for care and the interest on that figure, it would seem to me again that this should go to the next ·friend to be distributed by her according to the evidence as to care provided~ It does not seem to me that this item should go -to ·the'Public Trustee at this stage. That is an amount of .$1Hi, 717.90. The amount of the judgment, then, that would go to the Public Trustee is of the order of $687,450---Tbis is subject to Public'Trustee charges and Mr Crooke has sought the figure of $35,000 to cover that. The letter from the Public Trustee that sets out the charges is at page 43 of the bundle of documents in support of economic ·loss and future c·are ~ It contains as the final sentence: ( 't,' t'/ . "The most that can be done and what the Court in fact do is to select an arbitrary figure having regard to the appropriate scale which does justice to the JUDGMENT 20 ' . ' . i. f 10 20 30 40 50 60 -- 20 of 22 -- ' . ', plaintiff in the circumstances of the case." If ever there was a graphic description of injustice that must surely be it. How on earth an arbitrary figure can do justiGe is quite beyond me. However, this is the situation that we've got into and I don't propose to rectify the errors of many cases today. However, it would seem to me t-hat if one look:S at the scale. of charges, the Public Trustee's charges in respect of the ;lump sum would amount to $18,474. If the fund is invested at eight per cent, which would seem to me to be a sustainable figure at present, that wil:l produce an income of $55,oqo per year. The .. 1 '1\ charge on the income would be $3,250_per·annum or $62 per week L ___ ;y' over a period of 52 years. That would constitute charges. of the value of $61,700. Against that rather uncomplicated .; ' mathematical exercise Mr Crooke's claim of $35,000 is modest indeed and I will allow it. [j) The total of the judgment is $875,798 45. I would ask the party or the solicitors for the plaintiff to pr~pare a draft- order that deals with the matters I have indicated. a\ I " ' MR HURWARD: Yes, _Your Honour. HIS HONOUR: No doubt you will need to make some allowance for solicitor and client costs. That -will reduce slightlythe award, but I think within the general scope of thingswe've covered everything. MR HURWARD: Your Honour, I do have a couple of matters about costs that I would like to raise. The plaintiff did make an offer which was less than the amount which Your Honour awarded, and in those circumstances I seek an order that costsbe on a solicitor and client basis from.the.time -of commencement of ·the action. JUDGMENT 21 10 20 30 40 50 60 -- 21 of 22 -- 261192 MR MADDERS: I have nothing to say about that, Your Honour. HIS HONOUR: Well, the order for costs will be on solicitor and client basis. MR HURWARD: Your Honour, is it necessary for Your Honour to certify that the case warranted two counsel on the plaintiff's behalf'? HIS HONOUR: No, that's a matter for the taxing officer, but it would seem the complexity is such that that's justified. MR HURWARD: Thank you. I'm sorry, Yo~r Honour, Mr Crooke reminded me there were some reserved costs. I apologise for that. HIS HONOUR: Costs including reserved costs - that can be included in your draft order. MR HURWARD: Yes, thank you, Your Honour. JUDGMENT 22 • > ·'' 10 20 30 50 60 -- 22 of 22 --