IN THE SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION No. 39 of 1978 (Mackay Registry) BEFORE MR. ACTING JUSTICE HELMAN
BRISBANE, 10 MARCH 1989
BETWEEN:
COLIN DOUGLAS WATT and infants MICHAEL JOHN WATT and JAMES LAURIE WATT and TERRI LORENA WATT (infants who bring this action by their next friend COLIN DOUGLAS WATT) Plaintiffs
- and - COLIN WILLIAM HODGKINSON, TERRENCE WILLIAM RICHARDS and THE NOMINAL DEFENDANT (QUEENSLAND) Defendants
- and -
FIRE AND ALL RISKS INSURANCE COMPANY Defendant LIMITED by election
CORRIGENDUM
Page Line Reads Should read
16 4 sold personal sole personal representative of the representative of the estate estate
16 40 Commission (1983) Commission (1983) 28 N.T.R., p.19). 28 N.T.R., 19).
21 29 The fourth plaintiff has, The fourth plaintiff has, then, suffered a great then, had a great deal deal of of fr;-~VISED-COP!.~SISS UED-! j Court Reprntln'.J Bureau ! 1 vate, / )/ .3 / ft-c; j r,,qO IN THE SUPREME COURT OF QUEENSLAND .() CIVIL JURISDICTION No. 39 of 1978 (Mackay Registry) . BEFORE MR. ACTING JUSTICE HELMAN Sc 10 _10 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: COLIN DOUGLAS WATT and infants MICHAEL JOHN WATT and JAMES LAURIE WATT and 20 TERRI LORENA WATT (infants who bring this action by their next friend COLIN DOUGLAS WATT). Plaintiffs -and- COLIN WILLIAM HODGKINSON, 'TERRENCE WILLIAM RICHARDS and THE NOMINAL DEFENDANT (QUEENSLAND) 30 Defendants 30 -and- FIRE AND ALL RISKS INSURANCE COMPANY LIMITED Defendant by Election JUDGMENT 40 HIS HONOUR: This action arises out of a collision which 40 occurred on October 1, 1975 between a Holden station sedan registered-no. PDF-029 driven by the first plaintiff's wife and a Toyota Landcruiser motor vehicle registered no. OCU-168 driven by the second defendant. Mrs. Watt was killed in the 50 collision, as were three of her children who were passengers 50 in the station sedan. The second, third and fourth plaintiffs, also children of Mr. and Mrs. Watt, were other passengers in th ir car and were injured in the collision. The car was damaged. The first plaintiff claims damages for damage to his property I 60 ------_j 60 G 214-Govt. Printer, Old. -1- (the car), for "loss of dependency", and damage sustained by the estate of his wife. The second, third and fourth plaintiffs claim damages for the personal injuries they suffered. I should record that at the beginning of the trial Mr. 10 Barbeler, for the third defendant, admitted that the relevant 10 notices of the claims had been received by his client. Notices claiming indemnity or contribution were delivered by the first defendant to the defendant by election (the insure1.· I I of the second defendant), by the third defendant to the ! 20 second defendant, and by the defendant by election to the 20 first and third defendants. During the addresses I was told that all defendant~ abandoned any allegation of contributory negligence on the part of the first plaintiff's wife. I shall now set out the facts of· the case as I find-them 30 to be. 30 At about 8.15 or 8.20 p.m. on the day I have mentioned, Mrs Watt was driving the station sedan in a northerly direction along the Bruce Highway between Sarina and Mackay, Queensland about 20 km south of Mackay and north of Sandringharn Creek. 40 40 The road there had a bitumen surface with two lanes, one northbound and the other southbound, separated by a broken centre line. It was a long level straight stretch of road with gravel shoulders and guide posts at the edge. The road is shown in the plan Exhibit 41. The gravel shoulder on the 50 50 southbound side of the road was not wide enough for a car to travel on. It was a fine night and the road was dry. There was good visibility in both directions. The speed limit in the area was 60 miles per hour and she was travelling at about 45 miles per hour in the northbound lane. 60 60 G 214-Govt. Printer, Qld. -2- At the time and place I have mentioned a dark coloured late model Holden or Falcon sedan overtook the station sedan by moving around it on the right and then travelling back towards the left crossing the centre line of the road a few car lengths ahead of the Watts' car. 'The dark sedan was then 10 straddling the centre line when it began to veer slowly right 10 again into the southbound lane. It continued north in the southbound lane. The lights of the second defendant's vehicle could then be seen approaching in the southbound lane. The dark sedan and the Landcruiser were on a collision course. The Watts' car was proceeding in the centre of the northbound 20 lane, the dark sedan a few car lengths ahead and on its right. Suddenly the second defendant moved to his right out of the path of the dark sedan and_into that of the Watts' car. A few seconds after that movement the collision took place with 30 the results I have mentioned. All three vehicles were lit. 30 Neither colliding vehicle slowed down before the collision. The dark sedan did not stop. The collision occurred, as I have indicated, in the northbound lane, and at a point about 150 yards north of the 40 40 Munbura turnoff. Both vehicles rose into the air. The Landcruiser landed on its side on the driver's side in the northbound lane, facing north. The Watts' car landed facing north in the southbound lane on its wheels. It was severely damaged in the front as far as the windscreen. 50 50 A police investigation of the incident took place. Photographs were taken of the scene and the vehicles, and plans prepared. The second defendant, who suffered head and neck injuries in the collision resulting in his being in the Base Hospital for four to six weeks, was interviewed by 60 60 '.G 214-Govt. Printer, Old. -3- police officers. He was unable to remember the incident although he remembered drinking beer before setting out on the Bruce Highway. His blood alcohol level was tested and found to be 126 milligrams of alcohol per 100 millilitres of -, -,f'\-,1"."' C.--.•• --1~..!-.'t- -r ------.i-~.:1- bluoci ai... 9.50 p.111. UH ()1_.;i...Ou~.L ..L/ ..L;J/J .- .l...LVlLL VV.L.LJ..V.L.L ..L VV.l.LV.LU.U.C 10 that at the time of the collision he was adversely affected by 10 alcohol. The Landcruiser was mechanically sound before the collision. The question now arises: Who was driving the dark sedan? At about 8.00 p.m. on October 1, 1975 the first defendant, 20 a boiler attendant at the power alcohol plant at Sarina who 20 lived at 46 Hamilton Street, North Mackay, was in the bar of Carlons Hotel, Sarina. He had been drinking beer at the hotel in the company of two workmates, a Mr. Allan Plant and the witness Mr. Wilfred Thomas Morphy, for at least two hours. 30 At about 8.00 p.m. the bar attendant, Miss Sandra Anne O'Brien, 30 observed him to be very unsteady on his feet, to be stumbling around the bar, and to be leaning on the bar - in short to be adversely affected by alcohol. He left the hotel soon after 8.00 p.m. He was a short, stocky man and was wearing a navy 40 40 blue cloth cap on his head. He owned a car, a dark green late model Holden Registered No. OCM-911, which had a gold coloured roof. At about 8.30 p.m. on October 1, 1975 Mr. David Harold Wilcox was watching television at his house in Evans Street, 50 50 Mackay. He heard a loud crash, went outside to investigate and saw a dark green late model Holden car stationary with its lights on near an electric light pole. The car reversed away from the pole, and then became stuck in a culvert in George Street. Mr. Wilcox followed the car on foot. When he arrived 60 60 G 214-Govt. Printer, Qld. -4- near it a man got out from behind the steering wheel. The man asked him to telephone his wife. Mr. Wilcox asked for the telephone number but the man could not remember the number and then asked Mr. Wilcox to help him push the car out of the culvert. Mr. Wilcox replied that the two 10 would not be able to push it out of the culvert: it would 10 be necessary to get a tow truck to do that. Mr. Wilcox told· him that they had better telephone the police. Another by-stander, a young person, went to telephone the police from a nearby shop. The man who had been behind the steering ~:?.O wheel of the car then staggered off across the road over a 20 railway line and away from the scene. He smelt strongly of liquor and his speech was slurred. He had a cloth cap on his head. Constables Reginald Thomas Ryan and Donald Robert McKenzie 30 30 came to the scene of the incident in George Street, Mackay. They saw the first defendant's car .in the culvert and later found the first defendant sitting near a tree in nearby Evans Street close to its intersection with Stein Street - about threeI I minutes' walk from where the car was. The first defendant I 40 I 40 had an abrasion on his nose. He was wearing a cloth cap, he staggered when he tried to walk and smelt strongly of alcohol. The policemen took him back to his car in the police car and asked Mr. Wilcox whether it was the first defendant who got out from behind the steering wheel of the first defendant's car. 50 50 Mr. Wilcox said he was. The first defendant then went to the Mackay police station where he was required to provide a specimen of his breath by the breathalyzer operator Constable Dennis Kenneth Hansen. He refused saying that he had not been driving. Constable Hansen ~ ~ G 214-Govt. Printer, Qld. -5- ·, observed the first defendant to be walking slowly with a wide gait, to be unsteady on his feet, and to smell strongly of alcohol. His eyes were red and his speech was slurred. From the facts of the case as I find them to be, then, there is no doubt that the first defendant was under the 10 influence of alcohol at about 8.00 p.m. at Carlons Hotel in 10 Sarina, and that he was under the influence of liquor as he drove his car in George Street, Mackay. The plaintiffs allege that ~he first defendant was the driver of the dark sedan which overtook the Watts' station sedan just before the fatal 20 collision. There is no evidence directly identifying the 20 first defendant or his car as the driver and the dark sedan. There is, however, evidence of the driving of that vehicle from which the plaintiffs say I should draw the inference that the dark sedan was the first defendant's vehicle and that he was itl I i 30 30 driver. On the night in question Mr. Arthur Lawrence Bates was a passenger in a white Falcon sedan travelling north on the Bruce Highway from Sarina. He left Sarina at about 8.00 p.m. Some distance along the highway the car in which he was 40 40 travelling overtook a Landrover with a boat on top, and then came up behind a Holden Kingswood sedan being driven erratically north on the highway. The Holden was dark green or blue. Mr. Bates said he did not think the roof of the car was a different colour from the body. At times it went 50 50 completely onto the southbound side of the road. It had one occupant, a short person with what appeared to be closely cropped hair hunched in the front seat. The car in which Mr. Bates was travelling turned off the highway at the Hay Point turn-off, which is some distance from Sandringham Creek. 60 60 G 214-Govt Printer, Old. -6- Mr. Wayne Leslie Dockerty, who was a field officer with the Boating and Fisheries Patrol, was driving a cream Landrover with a dinghy on top on the night in question. He was travelling north along the Bruce Highway between Sarina and r, ___ .,: __ -J.. l\A--. -1..- _,,.. .. -t-...- .... .1- .l.'.LU.VH..U.j' • UU..J.... -LJ.~(..l. U \..- U.UVU \... 3.00 p.m. Ile saw a dark 10 coloured late model Holden or Falcon sedan travelling towards 10 Mackay in front of a white older model Ford station wagon which was also travelling north and in front of Mr.Dockerty. The path of the dark coloured sedan was extremely erratic, weaving from side to side of the road from time to time. On at least two occasions it crossed onto the southbound side 20 of the road and forced southbound vehicles off the road. Its headlights and tail-lights were on. The car immediately in front of Mr. Dockerty turned off to the right at the Hay Point turn-off. Mr. Dockerty then followed behind the dark sedan 30 at a distance of about 150 to 200 metres. Both cars were 30 travelling at 45 to 50 m.p.h. Mr. Dockerty did not see the driver of the dark coloured sedan but he did see the collision which has given rise to this action. The dark coloured sedan came behind the Watts' vehicle and then the collision occurred 40 as I have described it. 40 Mr. Bryan Lawrence Wallwork, was driving south on the Bruce Highway from Mackay. At about 8.20 p.m. he was near the Sandy Creek bridge which is no more than 4 kms north of the scene of the collision. At that point the road travels on a 50 loop to the right for a vehicle travelling north off the bridge 50 Mr. Wallwork approached the bridge on the southbound side of the highway and was confronted by a dark late model Holden sedan which was coming off the bridge and which was drifting into his path. He was forced off the road by the oncoming 60 60 G 214--Govt. Printer, Qld. -7- vehicle. He passed no other vehicles until he came upon the scene of the collision. Travelling from Sarina to Mackay at approximately 45 m.p.h. the journey takes between 30 and 40 minutes, and the scene of the collision would be reached approximately 15 to 20 10 10 minutes after leaving Sarina. In answers to interrogatories which were tendered as Exhibit 104, the first defendant admitted he was driving his Holden at or about 8.20 p.m. on October 1, 1975 from Sarina to Mackay but denied that he was then driving it along the 1 " 20 20 Bruce Highway at the point approximately 16 kms north of Sarina. When questioned in the course of the police investigation about the collision near the Munbura turn-off the first defendant refused to answer any questions concerning it. He was present in court during the trial before me but did not givJ 30 30 evidence. There was no explanation given as to why he was not cal led as a witness. 'I'he first defendant could presumably have sworn as to whether he was or was not the driver of the dark sedan. In the circumstances of the case as I find them to be, I 40 40 conclude that the dark sedan that overtook the Watts' station sedan and which Mr. Dockerty had seen being driven erratically before the collision was the first defendant's Holden sedan Registered No. OCM-911. I am satisfied that the vehicle Mr. Dockerty described as a white older model Ford station 50 50 wagon was the vehicle Mr. Bates said was a white Falcon sedan. The first defendant's car had a roof which was lighter in colour than the rest of his car which was, as I have said, dark green. The colour of the roof was not noticed or remembered by any of the witnesses, but I am nonetheless 60 60 G 214-Govt. Printer, Old. -8- satisfied that the dark sedan was the first defendant's car. I am also satisfied that the first defendant was driving his car, that he was at the time grossly affected by alcohol, and that he was guilty of negligence in allowing his car to A..-.; ~-1- .; -n+-~ -J-h..-.. ~l""\'f"l-l-hhl""\,,,.....rl , ...... ,...,,...., -:,-I- 0::-. -1--iT'r"I,...., T,-r'h-.._ ; +- T,T ...... ,.~-..... -'".J..-....1..1,,,- .....,.,1..,_._,_._,, _.,_ ...... _ "-->,._,...... ,_.._,;.~.._...... ,..,,...... , ...... ,._ ...... ,.....,.,..,.,...__ ,,.1...1._ ...... &...'-" ivt..,,.- 11-.J-...J. 10 dangerous to do so. 10 I am satisfied that the second defendant was also affected by liquor, but I am not satisfied that he was guilty of any negligence which was a cause of the collision. The second defendant was faced with a sudden emergency which 20 presented him with the choice of either moving suddenly to 20 his left and risking rolling his car over, plunging into a I gully, and hitting other obstructions, or moving to his right a1d risking colliding with the Watts' car. There was no possibilit} I in the circumstances of his stopping in time. The movement 30 to the right was a desperate one in the face of an emergency .30 in which he was confronted by two oncoming vehicles. He chose to move out of the path of the closer one. The investigating policemen did not take their inquiries further than I have outlined. The first defendant was they 40 concluded the only person who could reasonably be suspected 40 of being the driver of the car that caused the collision. That was I think a correct conclusion. No other lines of inquiry presented themselves or were reasonably open to the policemen, or for that matter, so far as the evidence reveals, to any one 50 else inquiring into the matter. 50 I shall now deal with the details of the claims set out in the plaintiffs' amended statement of claim. First, there is the claim for the damage to the first plaintiff• s car. The first defendant admitted in paragraph 2 (a)J 60 60 G 214-Govt. Printer. Qld. -9- of his defence that the Holden station sedan was owned by the first plaintiff. It was damaged beyond repair. I assess the first plaintiff's damages at $1,135. Its value was $1,150. The first plaintiff received $65.00 for it, and towing cost $50. 1 I The second claim is that under ss.·12 to 15C of the 10 Common Law Practice Act of 1867 as amended. 10 The first plaintiff and his wife Bronwyn Alice Watt, who was born on November 25, 1947, were married on May 6, 1964. The marriage was happy and stable. Mrs. Watt was a good mother and housekeeper. There were six children of the 20 marriage: Peta Jean, born on September 27, 1964; the second 20 plaintiff, born on October 11, 1965; the fourth plaintiff, born on February 12, 1968; Jason Douglas, born on August 11, 1971; the third plaintiff, born on February 15, 1973; and Nicole Jody, born on February 8, 1974. 30 30 Peta, Jason, and Nicole all died as a result of injuries suffered in the collision. Before the collision Mrs. Watt was in excellent health, and so was the first plaintiff. They lived at Colston Park near Sarina. The first plaintiff was then employed as a 40 ~o 1 porter-cleaner by Trans Australia Airlines at Mackay airport. The first plaintiff and his wife had boarding kennels for dogs. Mrs. Watt was not employed outside the house. She performed all normal domestic chores and did the bulk of the work in the kennels. 50 50 From October 13, 1975, when the first Watt child, the third plaintiff, came home from hospital, until March 27, 1977, the first plaintiff's parents John and Constance Eileen Watt lived in the plaintiffs' home and looked after the surviving members of the family. The first plaintiff's mother did the 60 60 3 214--Govt. Printer. Qld. -10- bulk of the work. She took over the role of mother - she cooked the meals of the family, washed and ironed clothes, and did all the housework. The first plaintiff supported the household with some help from his parents from time to time. A kennel club gave him $6,000 £rem donations from members. 10 In this period the first plaintiff flew to Brisbane often to 10 be with the fourth plaintiff who was in Brisbane for hospital treatment. The second and third plaintiffs were left in the care of their grandmother. On March 27, 1977 the first plaintiff resigned his 20 employment with TAA and took his children to Melbourne so the 20 fourth plaintiff could have further treatment there, because he was not satisfied with the treatment she was getting at the Royal Children's Hospital in Brisbane. The evidence as to the family arrangements from March, 1977 30 lacks precision, so it is not possible to determine more than 30 the broad outlines of what happened - but those broad outlines are clear enough. The Watt family remained in Melbourne until about January, 1 I 1978. For most of the time they were in Melbourne they resided 1 40 with the first plaintiff's sister-in-law and her husband, 40 Mr. and Mrs. Connell. Mrs. Connell helped with the care of the children by cooking meals, washing and ironing clothes, and doing the household shopping. She devoted two to three hours of her day to the children's care. For two months the second 50 and third plaintiffs stayed with the first plaintiff's brother. 50 The first plaintiff's brother and his wife cared for those children in that period. The first plaintiff began receiving the supporting parent's benefit when he was in Melbourne and continued to receive it until he obtained employment in April, 60 60 G 214-Govt Printer, Old. -11- 1981 at Goonyella. The first plaintiff himself replaced some of his deceased wife's services both in Melbourne and after the family came back to Queensland. They returned to Queensland in about January, 1978 when the third plaintiff began school. The family, the first, iO 10 second, third and fourth plaintiffs, went to live in a caravan in the Northern Gates Caravan Park at Sarina. Some months later the first plaintiff's mother and father took up residence in a street near the caravan park. Again the grandmother helped with the children, supervising them and 20 20 cooking meals and washing and ironing when needed. After some years in the caravan park the family moved in with the parents until the first plaintiff's remarriage on July 21, 1984. Between April 24, 1981 and April 27, 1982 the first 30 30 plaintiff worked at Goonyella. He lived there during the working week and returned home at weekends. His mother cared for the children. They were all at school. The first plaintiff made some financial contribution. Later his job in Goonyella finished and he was unable to find other full 40 40 time work. He went back onto the supporting parent's benefit and cared for the children with assistance from the grandmother while living in her house. The first plaintiff's mother took the fourth plaintiff to Melbourne for treatment and looked after her there. While the first plaintiff was on 50 50 the pension he and his mother made equal contributions to household expenses - he one fortnight and she the next, and so on. The first plaintiff's new wife is aged 23. The second I I plaintiff left home about the end of 1980 and the fourth I 60 j 60 G 214-Govt. Printer, Old. -12- plaintiff at the beginning of 1988 so there is now only the third plaintiff at home and the family is well settled. On the evidence before me I conclude that the loss of Mrs. Watt's services to the first plaintiff can be quantified by allowing 60 hours per week from October 13, 1975 (when the 10 10 third plaintiff came home from hospital) to January, 1978 (when the third plaintiff started school); 25 hours per week from I February, 1978 to December, 1980 (which was about ~hen the second plaintiff left home); and 10 hours per week thereafter I until the first plaintiff's remarriage. As the children _became 20 20 older they were able to help with the household chores, of course, and, on the evidence, did so. On behalf of the first plaintiff Mr. McMeekin said that I should adopt the method of measuring the first plaintiff's entitlement by using this loss of income. If there were 30 30 special circumstances this could be the measure - see Lunz, Assessment-of Damages for Pe£sunctl Injury and Death, 2nd ed., paragraph 9.3.10., pp. 417-418. There are, however, no special circumstances here in my view. The stated reason for the first plaintiff's giving up his 40 40 job at Mackay airport was that he was dissatisfied with the treatment of the fourth plaintiff at the Brisbane hospital, but no proper basis has been shown for that opinion. I am not satisfied that the first plaintiff could not have continued his employment and arranged for the fourth plaintiff to go to 50 50 Melbourne for treatment. What is required in a case like this is that a plaintiff demonstrate a need to replace the services of the deceased - I see the unreported decision of Connolly J. in Williams & Ors. V .I I Fleming & Anor. (No. 18 of 1978, Cairns; March 21, 1978) which I ____.'c6:.':;'.0_J------·------~- I 60 G 214-Govt. Printer, Old. -13- was affirmed on appeal to the Full Court (Appeal No. 29 of 1978; February 23, 1979). It would appear to me that the first plaintiff's entitlement is most accurately determined by using as a basis the cost of a housekeeper rather than by the artificial method of using the wages of an airline 10 10 porter-cleaner. In any event in this case it would be difficult to assess the first plaintiff's loss by the method suggested because although he did not continue to work for the airline he took up various other forms of employment some of which he did not mention but which other witnesses 20 20 did - e.g., the fourth plaintiff mentioned he worked as a bricklayer for five or six months and his mother that he worked for some cane farmers. I should add that the evidence shows that the first plaintiff became less attentive to the needs of his children 30 30 as time passed. The second plaintiff actually left home because of his father's behaviour towards him. Applying the cost of a replacement housekeeper as shown by a letter from the Queensland Department of Health to the solicitors for the plaintiffs dated February 15, 1988 (Exhibit 40 40 35) I arrive at the following figures: 1. October 13, 1975 to June, 1977 - 89 weeks x 60 hours x $2.75 per hour= $14,685.00; 2. July, 1977 to January, 1978 - 30 weeks x 60 hours x $3.75 per hour= $6,750.00; 3. February, 1978 to late August, 1978 - 29 weeks x 50 25 hours x $4.03 per hour= $2,921.75; 50 4. Late August, 1978 to early February, 1979 - 24 weeks x 25 hours x $4.09 per hour= $2,454.00; 5 • Early February, 1979 to early September, 1979 - 30 weeks x 25 hours x $4.26 per hour= $3,195.00; 6. Early September, 1979 to late March, 1980 - 28 weeks x 25 hours x $4.40 per hour= $3,080.00; 60 60 G 214-Govt. Printer, Old. -14- 7. Late March, 1980 to mid-October, 1980 - 29 weeks x 25 hours x $4.60 per hour= $3,335.00; 8. Mid-October, 1980 to the end of 1980 - 11 weeks x 25 hours x $4.79 per hour= $1,317.25; 9 . January, 1981 to early July, 1981 - 27 weeks x 10 hours x $4.79 per hour - $1,293.30; 10. Early July, 1981 to late October, 1982 - 67 weeks 10 x 10 hours x $5.15 per hour= $3,450.50; 10 11. Late October, 1982 to the end of 1982 - 10 weeks x 10 hours x $6.11 per hour= $611.00; 12. January, 1983 to late December, 1983 - 50 weeks x 10 hours x $6.40 per hour= $3,200.00; 13. Late December, 1983 to mid-JUne, 1984 - 26 weeks x 10 hours x $6.67 per hour= $1,734.20; and 20 20 14. Mid-June, 1984 to late July, 1984 - 5 weeks x 10 hours x $6.94 per hour= $347.00. The total of those sums is $48,374.00. The cost of maintaining the deceased, who was dependent on the first plaintiff, was about $1,000.00 a year at the time of her death. 30 30 That figure would no doubt. have increased with inflation in ,._ the eight years and approximately ten months in question. .J.l! those circumstances I think it would be appropriate to allow $35,000.00 as damages for the loss of Mrs. Watt's services. I am not satisfied that the kennels were operated at a 40 40 profit at the time of the deceased's death or ever would have done so. Mr. McMeekin argued that an extra sum should be allowed for I the loss of the deceased's guidance and training. He referred me to no authority on that subject showing that the law of 50 50 Queensland recognizes that head of damage. I therefore conclude that I am unable to award damages on that basis. Mr. McMeekin, speaking, of course for al 1 plaintiffs, submitted that this was not a case for apportionment of the damages awarded under Lord Campbell's Act. I accept that 60 60 G 214--Govt. Printer, Old. -15- submission as correct (see: Goss v. Sullivan (1959) Q.W.N. 26; and Lunz, op.cit., para. 9.4.06, p.425 fn. 6). The next claim is that made by the first plaintiff as th sold personal representative of the estate of Mrs. Watt. The first plaintiff's first wife died intestate leaving no assets, and ne purports to bring this claim, as I understand it, under 10 s.15D of the Common Law Practice Act of 1867, as runended, for 10 her funeral expenses. (Although s.15D was repealed by the Su~cession Act 1981, a claim begun in 1978, as this one was, continues under the repealed section by operation of s.3(2) of the 1981 Act.) Exhibit 33 shows that the funeral of the four members of the family cost $630.00, so that I think 20 it l20 appropriate to assess $500.00 as the cost of Mrs. Watt's funera; . In paragraph 1 of the plaintiffs' statement of claim it is alleged that the first plaintiff is the sole representative of the estate of Bronwyn Alice Watt, deceased~ There was no 30 admission in the first defendant's defence as to the first 30 pl~intiff's being the rcprcscntcJ.tivc of his first wife and no evidence to that effect. In those circumstances I conclude that that part of the proceedings is a nullity (see Parsons v. Australian Telecommunications 40 Commission (1983) 28 N.T.R., p. 19). 40 I shall now deal with the general damages of the second, third and fourth plaintiffs. The second plaintiff was admitted to the Mackay Base Hospital following the collision suffering a fractured right 50 femur, lacerations to the right knee and lower left leg, 50 abrasions of the right thigh and a haematoma over the right parietal region of the skull. He was unconscious. A compound scrub was performed on the right leg. The fracture was immobilized in a Thomas splin:t with skin traction. His 60 --~6~0-+--±-&·Ge-~i;i on s we re G-1-eane d and s-u~d-.---By..-No:v-emse r 21 ,-1---~ G 214-Govt. Printer, Old. -16- \ the fracture had healed and he was discharged from hospital on crutches. On December 22, 1975 he was reviewed and found to have a half-inch shortening of the right leg. He was unable to attend school for the rest of 1975. He had a limp fo, twelve or eighteen months and some dull pain in the leg. 10 The second plaintiff's legs are now of equal length and 10 were so by his thirteenth birthday, in October, 1968. He suffers from no residual effects of his injuries except for the irregularly healed scarring over the right patella, a small scar over the left patella, and scarring lateral to the anterior tibial border. It is not expected that he will 20 suffer from any disabilities in the future. I assess the second plaintiff's damages for pain and suffering and loss of amenities at $4,000: $3,750 to now, and $250 for the future. 30 30 The third plaintiff was admitted to the Mackay Base Hospital on October l, 1975 suffering from a fracture of the left clavicle, tension pneumothorax of the right chest, and bruising and soreness of the right ankle and foot. He underwent an intercostal underwater chest drain and was 40 40 discharged from the hospital on October 13, 1975, as I have already mentioned. He has no residual disabilities. There is no deformity of his clavicle. He has made a complete recovery and further difficulties are not expected. I assess the third plaintiff's general damages for pain 50 50 and suffering at $300.00 The fourth plaintiff was admitted to the Mackay Base Hospital on October 1, 1975 with a compound fracture of the mid-shaft of the left radius and ulna, a fractured left clavicle, a fracture of the right femur, a ruptured spleen, 60 60 G 214-Govt Printer, Old. -17- multiple intussusceptions of the small bowe\ and a compound comminuted fracture of the left side of the skull and facial bones with multiple fractures which included the orbit. There was damage to the underlying left frontal lobe of the brain. A large inverted "Y" shaped laceration overlay the fractures 10 extending from the forehead downwards running around both 10 edges of the eye and onto the left cheek. The fourth plaintiff's spleen was removed at the Mackay hospital. On October 2, 1975 she was transferred to the Royal Children's Hospital, Brisbane. On October 9, 1975 operat·ons 20 to repair her left temple and cheek were performed at the 20/ Brisbane hospital from which she was discharged on November 4, 1975. The fourth plaintiff has had a great many other operAtj.ons as a restilt of the injuries suffered in the collision. On 30 June 30, 1975 an acrylic plate was inserted in her left temple 30 at the Royal Children's Hospital, Brisbane. On July 2L, 1~16 she underwent an operation to repair a persistent leak of brain fluid at the same hospital. On November 19, 1976 she had repairs on the nasal side of the left eye and to the left 40 tear duct. In 1978, 1982 and 1986 she underwent operations I 40 at the Royal Children's Hospital, Melbourne. A cranio-facial procedure performed on April 17, 1978 lasted fourteen hours. It was most desirable that her father be present during and after the operations. 50 50 The fourth plaintiff's injuries had a severe effect on her childhood. She was unable to swim, ride a bicycle or play hard-ball sports for fear of suffering further injury. She was often in hospital. She was teased at school about her appearance. Her head injuries caused some intellectual 60 60 -Govt. Printer, Qld. -18- impairment upon which I shall elaborate later. That intellectual impairment combined with the disruption to her schooling caused by the treatment she underwent and the teasing more probably than not adversely affected her results at school. 10 The fourth plaintiff has been left with a number of residua 10 disabilities. There has been complete union of the fourth plaintiff's left radius and ulna but a significant loss of function of the left forearm. She now suffers a loss of function of twenty to twenty-five per cent, of the left upper limb. No further 20 treatment is possible. She has had subsequent fractures distal to the elbow and they have healed satisfactorily. She was born left-handed and is now right-handed. The fourth plaintiff has suffered no functional deficit 30 as a result of the fracture of her left clavicle although there 30 is a small bump about the mid-point. The fourth plaintiff has suffered a loss of ten per cent. of flexion of the right hip. It is unlikely she will suffer osteo-arthritis as a result of the injury to her right femur. 40 It is unlikely that the removal of the fourth plaintiff's 40 spleen will affect her ability to become pregnant or to deliver a child. The fourth plaintiff has suffered a pennanent eighty--five per cent. los of vision in the left eye caused by retinal scarring between 50 50 the optic nerve and the macula caused by injuries suffered in the collision. No treatment is possible. In addition, there is permanent watering of the left eye caused by damage to the tear duct and tear sac caused in the collision. The watering of the left eye will cause inconvenience for the 60 60 G 214-Govt. Printer, Qld. -19- rest of her life. Two major surgical attempts have been made to remedy the problem. Both have been unsuccessful. Further attempts are unlikely to succeed. She has suffered a permanent loss of normal lid functioning preventing normal lid closure. An eye ointment and drops are necessary 10 10 for treatment. The oinbnent costs $6.50 per month and the drops $6.30 per month. The permanent loss of normal lid functioning means she has a twenty per cent. chance of corneal ulceration in later life. Half of such cases can be managed medically and half need an operation. She has suffered 20 20 a severe effect on her appearance in that the left eye is two millimetres lower than the right and there is obvious scarring of the eyelids, brow and cheek. She requires spectacl s partly because of the defect in her left eye and will need spectacles for the rest of her life for reading, watching 30 I 30 television and driving. They must be renewed every two or thre1 I years. The lenses cost $80.00 and the frames $50.00 to $100.00 Forty per cent. of the necessity for spectacles is attributable to the left eye. The fourth plaintiff has been left with extensive 40 40 scarring of the left orbital region extending into the forehead and into the left zygomatic region with some sensory loss in the scarred areas. She has scarring of the lateral aspect of the right thigh, abdomen, right upper chest, right hip and left elbow. She has been left with a major disfigurement around her 50 50 eye. Most of the scars have matured and are permanent. Some minor improvements are possible. The cost of the surgeon would be $500.00, the anaesthetic $200.00, and she would be two weeks off work. and would have one week in hospital. She feels, however, she has had enough operations and at the ·moment inten s 60 60 G 214-Govt. Printer, Qld. -20- not to have any more. As she put it; thirteen years in and out of hospitals "gets to you after a while". The fourth plaintiff suffered a moderately severe primary brain injury which has resulted in a five to ten per cent. chance of her having post-traumatic epilepsy. If she remains 10 10 fit-free that possibility should be reduced. She has suffered some mild intellectual impairment as a result of the brain injury. There is no evidence that her language functioning has been affected, but her non-verbal practical intellectual ability level has been. That means that fields ,_o 20 of employment other than those where verbal ability is required are not now open to her. Areas such as drafting, graphic design, and employment requiring manual skills are not within her competence. The fourth plaintiff has, then, suffered a great deal of 30 30 pain and suffering from her injuries and treatment. She has been left with a loss of function of the left arm and right hip; loss of vision in, and permanent watering of, the left eye; extensive disfigurement; and brain injury. The fourth plaintiff is at present living in Townsville. 40 40 Since February, 1988 she has been a student at the Rhema Bible College which is conducted by the Assemblies of God Church. She intends completing a three year course after which she will be qualified for counselling, preaching, and missionary work. She intends going overseas to an Asian country to undertake 50 50 counselling after she graduates from the college and then returning to work with her father who is studying to be a pastor of the church. The church pays an annual salary of $15,000.00 plus medical, travel and accommodation expenses to unmarried missionaries in Indonesia. 60 60 G 214--Govt. Printer, Old. -21- The fourth plaintiff works twelve to thirteen hours per week as the assistant manager of a shop. She has earned to date about what she would have earned had she not been injured. She is happy with the career she has chosen for herselt, and she will be tit tor employment such as social 10 work and jobs entailing the education and management of young 10 people. She has adjusted very well to the effects of her injuries, but the fact remains that although it has not been established that her past earning capacity has been impaired clearly her future earning capacity has. The condition of 20 her left arm and right hip, her defective vision, her 20 disfigurement and the intellectual impairment I have referred to mean that areas of employment she may have wished to enter, and probably would have entered at least from time to time, are no longer open to her. I think it would be artificial 30 to assess her loss under this head by using a weekly figure. 30 In rn~l ·vie;.~: a global .sum is appropria tc to this ca::;e. ch - ~~.: ...:1 in evidence she would like to get married and have chi:::e:~~~ l I must allow for that and the other things that are likely tot ke her out of the workforce, and of course her remaining earning 40 capacity in assessing her general damages under this head. 40 I assess her general damages at $120,000.00: $45,000.00 for pain and suffering and loss of .amenities to now, and $45,000.00 for the future; and $30,000.00 for impairment of her future earning capacity. In assessing her damages for pain 50 and suffering and loss of amenities in the future I have taken 50 into account future medical, pharmaceutical and optometrical expenses. A claim for $3,324.24 for travelling ($2,774.24) and accommodation ($550.00) has been made by way of special 60 60 G 214-Govt. Printer, Qld. -22- damages arising from the expenses incurred by the first plaintiff in visiting the second, third and fourth plaintiffs in hospital (Exhibit 70). During the addresses Mr. McMeekin conceded that that sum, if recoverable, would be recovered by way of special damages payable to the second, third and 10 fourth plaintiffs. I apportion $565.00 to the second plaintiff, 10 who was in hospital for about seven weeks; $161.00 to the third plaintiff, who was in hospital for about two weeks; and $2,598.24 to the fourth plaintiff. The fourth plaintiff has established special damages, in -o.o addition to those to which I have just referred, of 20 $18,884.73. There will therefore be judgment for the first plaintiff against the first defendant for $36,135. I order that the first plaintiff's purported claim as 30 personal representative of the estate of Bronwyn Alice Watt 30 deceased be dismissed. There will be judgment for the second plaintiff against th first defendant for $4,565. There will be judgment for the third plaintiff against 40 the first defendant for $461. 40 There will be judgment for the fourth plaintiff against the first defendant for $141,482.97. I order that the plaintiffs' remaining claims against the third defendant and the defendant by election be dismissed. 50 I order that the first defendant pay to the first plaintif 50 interest on the sum of $1,135 at the rate of ten per cent. per annum from and including October 1, 1975 to and including the date of judgment. I order that the first defendant pay to the first 60 60 G 214-Govt. Printer, Old. -23- plaintiff interest on the sum of $35,000 at th~ rate of five per cent. per annum from and including October 13, 1975 to and including July 20, 198~, and at the rate of 12 per cent. per annum from and including July 21, 1984 to and including the date of Judgment. 10 I order that the first defendant pay to the second 10 plaintiff interest on the sum of $4,315 at the rate of five per cent. per annum from and including October 1, 1975 to and including the date of judgment. I order that the first defendant pay to the third 20 plaintiff interest on the sum of $461 at the rate of five 20 per cent. per annum from and including October 1, 1975 to and including the date of judgment. I order that the first defendant pay to the fourth plaintiff interest on the sum of $47,598.24 at the rate of 30 five per cent. per annum from and including October 1, 1975 30 to and including the date cf j~dgment. I order that the third defendant pay to the plaintiffs their costs of and incidental to the application before Kneipp J. on October 5, 1987, excluding any costs incurred on 40 August 31, 1987 in connexion with the application, such costs 40 to be taxed. I order that the first defendant pay to the plaintiffs their costs of and incidental to the action to be taxed, such costs to include all costs increased by reason of there being 50 four defendants. 50 I order that the first defendant pay to the third defendant and the defendant by election their costs of and incidental to the action, to be taxed. I direct that the moneys recovered by the third plaintiff 60 60 G 214-Govt. Printer, Old. -24- against the first defendant be paid to the next friend of the third plaintiff to be held by him in trust for the third plaintiff until the third plaintiff attains his majority, to be applied by him for the welfare and education of.the third plaintiff. 10 I certify for the attendance of the plaintiffs' counsel 10 on the judgment. 20 20 30 30 40 40 50 50 60 60 G 214-Govt. Printer, Qld. -25-