Coughlin v Stanley & Ors [1992] QSC 404

_.(·,.: .•. : ..::. c.- YCJ.f Lf 0~ ~~:xy[~t State Reporting Bureau c c c TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) · SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J . No 3330 of 1988 TONI COUGHLIN ahd JAMES ALFRED STANLEY and BARRY ALBERT HARRIS and RODNEY BUCKTON and FAI GENERAL INSURANCE COMPANY LIMITED BRISBANE •. DATE 03/11/92 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date f I 1 11 1 q ,Z r Plaintiff First Defendant Second Defendant Third Defendant Defendant Election by 4th Floor, The La~ Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 16 -- ~-~-~---~ ~~------~~-~---~--- 031192 HIS HONOUR: The plaintiff was 16 years old and in grade 12 at the Moura State High School when on the night of 12 June 1986 she was rendered paraplegic through injuries sustained after a head-on collision between the vehicle in which she was a passenger and a truck. The defendants admit their 1 o liability, but contendthat the plaintiff was contributorily negligent. The vehicle in which the plaintiff was a passenger was a Toyota Land Cruiser. The model was popularly known as a 20 Troop Carrier. Two seats were in the front: a bucket seat 0 for the driver and a half bench seat on which two passengers 0 could sit. Lap/sash seatbelts were fitted for the driver's seat and for the passenger sitting nearest the door. For the passenger in the middle, a lap type seat belt was 30 provided. The Toyota was driven by the~ plaintiff's brother-in-law. When the collision occurred the plaintiff's mother was si·tting next to the front passenger door. The middle front s:eat was unoccupied. The plaintiff, her sister and the plaintiff's two-year-old niece were in the back lying on a mattress. The mattress was on a board which rested on raised ·metal sections along both sides of the rear compartment. These sections were so constructed that seat cushions could · be placed on them to accommodate passengers in the back. The vehicle set out from Moura at about 2 p.m. on the day 2 JUDGMENT 40 50 60 0 () -- 2 of 16 -- 031192 the accident occurred. .This was the beginning of a family holiday. The accident occurred at about 7·. 45 p. m. , two hours or so after dinner at Rockhampton~ When the collision occurred the three rear passengers were lying with their heads towards the front of the vehicle. The plaintiff was ;o behind the driver, her sister was behind her mother, and the child was between them. They were not restrained by a seatbelt or any other device. Nothing like that was fitted in the rear compartment. c The force of the impact on collision must have been great. c Not only was the front of the vehicle badly crushed, its metal roof also crumpled, coming away from the superstructure. The plaintiff was ejected from the vehicle. Almost certainly she sustained her spinal injuries outside it. c The amended defence pleads that the plaintiff voluntarily accepted the risk of noncompensable injury -·see paragraph ··c"· SA. Alternatively, contributory negligence is alleged. The Volens plea was abandoned.· Contributory negligence is pleaded in this way in paragraph 5B: "Further, or in the alternative, the first·and second' defendants say that the plaintiff caused or contributed to her injuries in that she faiied to take reasonable care for her own safety. Particulars of which are asfollows: (a) In breach of regulation 90B of the TrafficRegulations, failing to wear a seatbelt properly adjusted and securely fastened; 3 JUDGMENT 20 50 60 -- 3 of 16 -- 031192 (b) Further, or alternatively,· travelling in the rear baggage compartment of the Toyota Land Cruiser, which was · not designed for the · carriage ·· of passengers, and in which no seatbelts or other body restraints were available for her use; (c) Further, or alternatively, travelling upon a road as a passenger in the rear baggage compartment of ·the Toyota Land· Cruiser when there was an available 10 seat position in the front bench between the driver and the left-hand passenger for which a seatbel t was fitted." None of the three family members in the rear compartment had a better claim to the vacant front seat in the interests of 20 personal safety. In these circumstances, establishing contributory negligence depends, in my opinion, upon the defendants proving that to travel in the rear compartment where there were no restraints constituted such a departure from the standard of care reasonably to have been expected 30 in the interests of safety that that conduct should be held to be contributory negligence. This is, in substance, the case pleaded in subparagraph (b). It has not been shown that the carriage of passengers in the 40 rear of such a vehicle necessarily contravened any Statute or subordinate legislation or that the rear compartment was not designed for the carriage of passengers. Plainly, the rear compartment was designed for the carriage of passengers. Moreover, such a use was not illegal, at least 50 not if all the front seats were occupied. Regulation 90B 2 (a) of the Traffic Regulations 1962 does provide that a person, when travelling upon a road as a 60 4 JUDGMENT (J CJ 0 0 -- 4 of 16 -- c c 031192 passenger in a motor vehicle . which has .seat positions for which seatbelts are fitted, shall not occupy a·seat position for which a seatbelt is not fitted unless all seat positions for which seatbelts are fitted are occupied by other persons. That regulation may; ·on one view of it, have been 10 contravened. It is not necessary to decide that question. It was conceded, correctly, in my opinion, .that the mere breach of the regulation would not of itself establish contributory negligence. And contributory negligence is not 20 made out. No evidence was adduced to suggest that the plaintiff's choice to travel in the rear of the vehicle was contrary to accepted community standards; and I do not think that it was unreasonable for ~er, having regard to her own safety, to have made that choice. The reasoning in Guidera y. Government Insurance Office (New South Wales) (1990) 11 M.V.R. 423 is apt. Although not necessary to my conclusion that the plea of contributory negligence fails, it may be added that the middle seat was not comfortable for an adult . on a long journey, and, depending on how an adult occupied it, might pose a safety risk. The gearshift was mounted just in front of the middle seat. An adult passenger in that seat had a few choices. None of them involved occupying the seat comfortably. One posed an element of safety risk: straddling the gear housing with the legs, which would put the right leg near the clutch. The other two uncomfortable positions were these: (i) to raise both knees to about chest 5. JUDGMENT 30 40 50 60 -- 5 of 16 -- 031192 level with the feet on the housing; and (ii) to sit side on with both feet near the feet of the other passenger. Balancing the discomfort .associated with the second and third courses against the benefit of a lap belt in the improbable event of a serious. accident could· sensibly lead 10 to the decision tha .family. made, viz. that three of them should travel in the rear. I turn to quantum. 20 (J There is no controversy concerning the nature and extent of the plaintiff's- injuries, her treatment, the residual symptoms, or as to her physical and.mental limitations. The reports . of . the. physicians, urologists, psychologists and a psychiatrist were received without objection. Also admitted by consent, and without cross-examination of the author, was the report of an occupational therapist, Lesley Stephenson, (J 3J whose report is proved by the plaintiff's evidence to have () been. based on .true facts. . There is also agreement concerning the amounts to be attributed to most of the components of the award of damages. extensive mentioned. In these circumstances I do not propose to set out .passages from the medical and other- reports It is appropriate,. however, that I avert to some aspects of the evidence. In the accident the plaintiff sustained these injuries: 6 JUDGMENT 40 0 50 60 -- 6 of 16 -- 031192 (a) Complete.paraplegia below her 9th thoracic vertebra; (b) A fracture of the middle third of the left clavicle; (c) Bilateral haemothoracies; 10 (d) Exten,sive bruising around the right kidney; (e) An extensive laceration of the right lower lobe of · the liver; (f) Bruising around the right orbit; 0 (g) A head injury resulting in organic brain damage. 20 The plaintiff's life expectancy is normal, but her working life expectancy has been significantly curtailed. Her recuperation was long (six months in hospital), difficult, complicated by peritonitis. and. a. . life-threatening 3C! thrombosis. (: The plaintiff is confined. to a wheelchair •.. She· does drive .a car. At the moment she lives at home. She has, however, . the capacity to live on her own and wishes to do so. She ( will acquire a specially modified house with the .proceeds of. this litigation. The plaintiff is at risk of urinary ·tract infection, ·kidney infection and pressure sores. Treatment for one such . sore recently required surgery and hospitalisation. In the years to come the plaintiff will require hospitalisation. . Next year she will have a bladder operation. · Thereafter,. . there is a demonstrated need for hospitalisation, which on the .. 7 JUDGMENT 50 60 -- 7 of 16 -- 031192 report of Dr Davies dated 27 · June 1988 may· fairly be assessed at 10 days annually. There is sexual impairment, but the plaintiff's fertility is not affected. She wishes to -marry at about age 30 and have children. ;o There is a · high probability., that she will' do both. The plaintiff has adapted · unusually well to· her condition, a1 though there have been occasional bouts of depression. She leads a comparatively active social life. Generally she exhibits a positive- attitude to life. Her personality, as 2o it emerged from her evidence and in her reactions over the years to the very considerable problems she has confronted, shows that she is the kind of person who, if she had not been'injured, would have been- well ·motivated towards making the most of her life and talents in future employment and in 30 other ways. The plaintiff needs-a house with special features. She has required and will in the future continue to require special assistance.· In respect of general damages for pain and suffering and loss of' the enjoyment of the amenities of life, the plaintiff· sought '$120,000~ For the "defendants $100;000 was suggested. · · $120, 000 · seems to me modest compensation. will be allowed. It It·is·more than six years since the accident. It therefore seems reasonable-to assess the pre-trial component at 8 JUDGMENT "" ~0 50 60 (J 0 -- 8 of 16 -- c 031192 $50,000. is $6,300. Interest is therefore allowed: on that sum. That Special damages are agreed at $98,008.61. Interest on it is agreed at $4,315.85. Except for hospitalisation, future iO expenses are agreed. Those agreed are as follows: (1) Future expenses substantiated by reports from Paraquad, Miss Stephenson, Dr Hill, and the architect, $146,069.98; - . ( 2) Initial capital · costs of ·. mobility aids etc, 20 $23,179; (3) Cost of additional housing, $48,624; (4) Future bladder surgery, $11,295; (5) Future holidays - additional attendant and travel costs, $10,000. Mr Douglas QC suggested $60,000 for future hospitalisation expenses. have been Using the 10-day figure, which seems to me to proved and reasonable, the figure yielded on· current costs is $76,415.76. at $76,000. I will allow this rounded off The major components in dispute are · economic loss and the allowances for the provision of additional services both pre-trial and for the future. The · assessment of economic loss is particularly difficult. It involves, as Lord Diplock said in Paul y. Rendall (1981) 55 ALJR 371, 372, "A double exercise in the·art of. prophetising not only what the future holds for the injured plaintiff, but also what the 9 JUDGMENT 30 40 50 60 -- 9 of 16 -- 031192 future would. have held" if shehad not been injured. The plaintiff's academic achievements at school were modest. She was not in the stream to obtain a TE score. So it was most .. unlikely. . that she would have received a tertiary 1 o education. There was, however, every chance that she would have obtained a trade or technical qualifications; for example, as a .flo:t;:"ist or in such a field as photography if she had not become a police officer. She had no ambitions for . clerical work although her grades at Junior level and 2o Q afterwards indicate that bookkeeping and minor clerical work would have been well within her capacity. She had an·~ interest in joining the police service. It was, so to speak, well on the cards that, but for the accident, she would .. have been inducted eventually into the police force. If so, this would have been when she was in her late teens, after she had spent time working in some such job as a . shop . assistant upon leaving school. Had she become a police officer there was a substantial likelihood that she ' ' would have.remained permanently employed in the service, if only in the non-commissioned ranks, until she retired at age 55 . or later. Of course, there are plenty of other things she .might have done. A remote possibility is that she might have married in her late teens, had . children early, and never returned to the work force. She might also have had to settle for· .. lower paid positions than police officer. Perhaps life held for her a slightly lower · than average income for a working life.which extended into her late 50s 10 JUDGMENT 30 40 50 60 -- 10 of 16 -- c~ 031192 or beyond, with · intermittent bouts of unemployment associated with caring for children, job changes, or other causes. That she was disabled before leaving school makes further 10 speculation unhelpful. She was a· healthy, personable, adolescent girl of average intellect who had not firmly resolved on a career path when she sustained her injury. However, such income-earning opportunities as she had until now have been destroyed. And although this case will ·afford 20 her the means to acquire new skills ( for example, as a florist), her residual earning capacity is very considerably affected by her gross physical and minor intellectual deficits. Obviously the limitations imposed ·by · her paraplegia are a major constraint in her engaging in remunerative work. These limited prospects are further reduced by three considerations: 30 c~ (a) Doctor Hill Is evidence establ"ishes that . her physical limitations will· reduce ·her working ·.life. · c It could be cut· short by 15 years or more. 4 C' (b) Her short-term memory loss must· prejudice her chances of gaining and retaining employment. (c) She has no prior ·work experience and must ·compete in a labour market.where jobs are scarce for people who are not disabled. After allowing for her personal care .routine, she has a physical capacity to do some·kinds of work for four to six· hours daily: see the report of Miss Stephenson dated 12 May 11 JUDGMENT 50 60 -- 11 of 16 -- 031192 1992 at . page . 60 at Exhibit· 2. However, such limited capacity to engage in work as she has, will, in view of her physical limitations and short-term memory loss, be very difficult to exploit. There is a chance, one which must be valued, that. she will earn income in· future. However, her circumstances and those of the prevailing labour market suggest that the pecuniary value to be attributed to her residual earning capacity is no large sum. The prospect of permanent work is ... · slim indeed, notwithstanding the remarkable way~ in which she has so far coped. Exhibit 26 contains schedule$ showing net weekly salaries currently earned by shop assistants, florists, bar att~ndants, police constable· and others. The minimum award payments range from $269 to $433 net per week. If she were iO 20 0 30 now a florist, on the minimum award wage, she would be earning about $285 per week. As a shop assistant her weekly take-home. pay would be a little more than $310. 0 Calculations of past · economic loss have been attempted on both sides. Assuming $269 net per week as a florist as the average pa~ . since she would have first worked on leaving school, the sum yielded is about $89,000. If she had worked full-time as a shop assistant for minimum award wages before joining the. police force at the earliest opportunity, she would have earned, pre-trial, about $94, 000. This $94,000 figure is a starting point; but it must be discounted to accord a fair reflex of the loss, even though it does not include any allowance for overtime or bonuses. The plaintiff might have chosen other employment or been 12 JUDGMENT 40 0 50 60 -- 12 of 16 -- 031192 unemployed for some of the time after leaving school until trial. A reasonable allowance -for · pre-trial economic loss is $80,000. It is agreed that ~nterest should not be· awarded on $42,796 of that sum. Interest on $37,204 at 6 per cent· per annum for 6.3 years is $14,063. That· sum will 10 be allowed. I turn to future economic loss. If the plaintiff were employed as a florist and continued to work in that capacity C: until age 55, a further 32 -years, then using the 5 per cent 2o tables and the current award, the loss is about $245,000, c) making no allowance for the value. of a residual capaci ty:o If, however, the 5 per cent table is applied·to a weekly net loss of $350 for 32 year~, the sum yielded is somewhat-less· than $300,000. Were the plaintiff now ·employed as a constable pay point four, she would be earning $433 net per week. Had she not been injured there is, as I have C: indicated, a fair chance that she would have achieved as much. And had she joined the police service her prospects of eventually obtaining at least the rank of :. sen.ior constable pay point three would, in my assessment, have been very good. An officer holding that rank presently has a take-home pay of about $500 net ·per week. ·The accident has permanently deprived the· plaintiff of the opportunity· of ever earning ·such well-above average - income. On the evidence before me,. nothing she might now expect to earn in future will approach more than a tiny . fraction of such a· sum. 13 JUDGMENT • .. \. 30 50 6(1 -- 13 of 16 -- ( --- 031192 Mr Crooke QC suggests that the . $350 base figure used in calculations to arrive at . the approximately $300,000 future loss is not excessive. He also points out that the $245,000 amount. yielded by· using the minimum award wage for a florist makes no allowance for overtime and other additional ;o monetary benefits that . may be expected to accompany such employment. In approaching the assessment of future economic loss it is necessary to take into account such vicissitudes as that the 20 plaintiff might otherwise have suffered ill-health reducing her employment possibilities or that children might have taken her away from the labour market in any event. And, as I have indicated, importantly, credit must be given for the mone.tary v.alue of the prospect that she will in future earn income in her disabled state. The figures and calculations which I have canvassed are no more t_han sign posts to the award. In my opinion fair compensation for diminution in future earning capacity is $275,000. Tf1ere is some agreement as to the Griffiths v. Kerkemeyer component. The defendants accept ··that using the Domicare rates the following allowances should be made: December 1986 to 13 February 1987, $4,840; March 1987 to May 1987, $5,890. A dispute is whether three or else six hours should be allowed per week until trial. 14 JUDGMENT 30 40 50 60 0 () 0 -- 14 of 16 -- . . .. ' c c 031192 In answer to interrogatories and in her evidence .. the plaintiff indicated ··that while she lives at home with her parents at Moura she needs assistance for three . hours a week. That is the figure which should be used for assessing the allowance pre-trial for · gratuitous assistance. Using 10 the three hour per week figure yields $20,129.50. Only that amount should be allowed. Interest on it is $7,608.95. As to the future Griffi ths v. Kerkemeyer claim, . there is a sound basis for assuming an average weekly need of six 20 hours. This is the level of support _which - may fairly be said to arise when, in the relatively near future, the. plaintiff acquires her own home .. The report of Miss Stephenson (which was not challenged by 30 cross-examination or other evidence) shows · that the plaintiff will need assistance with her laundry, in C: cleaning, in gardening, in shopping, and in personal ca-re when she acquires her new home. When she has children that c will impose additional demands. Further, the evidence of Dr Hill shows that her need for assistance will increase 40 when she must care for children and also inevitably with the passage of time. In her . mid 40s a deteriorating physical· state may well require her to obtain.help to get in-and out of the car, in the toilet, or in the shower; and there may 50 be other ways in which she will need more assistance than · she is currently getting. Miss Stephenson summarised the future attendant care needs 60 15 JUDGMENT -- 15 of 16 -- 031192 when the plaintiff comes to live alone as gardening, one hour per week; shopping, three hours per week; cleaning, one hour per week; and childcare, when it is necessary, five to six hours daily. Taking into account the future· childcare needs and the additional assistance that can be expected to be needed in years to come even if the plaintiff does not have children, it seems to me reasonable to allow, as an average, six hours iO ' ' ' ' ' per week for the balance of the plaintiff 1 s life. This is, 2o 0 as Mr Crooke reminded me, to allow less than one hour per day. It was not disputed that 58 years should be used for 0 the purpose of this calculation. Six hours per week at the commercial rate of $75 per week, over that time, discounted to present value, is $75,450. This may as well be rounded 30 off to $75,000. The plaintiff has established an entitlement to judgment in 0 the sum of $1,015,593.89. 40 0 HIS HONOUR: There will be judgment for the plaintiff against the defendants for, as I have indicated, $1,015,593.89. There will be a further order that the 50 defendants pay the plaintiff 1 s costs of and incidental to the action, to be taxed on a solicitor and client basis. 60 16 JUDGMENT -- 16 of 16 --