Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Meagher v Stribling

 

[2005] QSC 300

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Claim No 145 of 1998

JOSHUA FRANCIS MEAGHER

Plaintiff

and

 

KELLY MARIE STRIBLING

First Defendant

and

 

SUNCORP GENERAL INSURANCE LTD

Second Defendant

CAIRNS

DATE 05/10/2005

JUDGMENT

HIS HONOUR: This is an application for the sanction of a proposed settlement of the claim for damages on behalf of Joshua Francis Meagher. The plaintiff was born on 3 February 1977 and is now 28 years of age. On the statistical tables he has a life expectancy of approximately 50 years.

At approximately 9.40 p.m. on 6 October 1995 he was injured when struck by a motor vehicle on Kamerunga Road, Stratford, Cairns. He was at that time in the company of six other companions, three young women and three young men. They were variously walking or skateboarding along the road. The area where the accident occurred was dark because the street lighting which had been erected in the area was not operating at that particular time.

Some of the party were walking on the right-hand side of the carriageway in accordance with their direction of travel and others, including the plaintiff, were on the left-hand side of the road. At the time mentioned the plaintiff was walking or using his skateboard in front of his companion Kai Jones. They were moving in single file, the plaintiff being in front. A third member of the group had been with them a short time earlier but he had decided to cross the road to the right-hand side and rejoin the other members of the group.

The fact that the plaintiff was skateboarding on the left-hand side of the roadway had caused cars to drive around him at an earlier time. This caused other members of the group to warn him and Jones that they should cross the road, but neither did so.

The defendant was driving her vehicle in the same direction and, it appears, was travelling at a speed below the permissible speed limit when she first struck Jones who later died from the injuries he sustained. She also struck the plaintiff who, as I have mentioned, was travelling in front of Jones.

The driver of the vehicle claimed that she did not see either of those two persons. She had, however, seen other members of the group on the right-hand side of the road and she had particularly seen their companion who had only a short time prior crossed to the right-hand side.

There is some issue about whether the plaintiff and Mr Jones were wearing dark clothing. But, in any event, the absence of street lighting made it difficult for the defendant driver to see who was on the road, particularly when her attention was also drawn to the other persons on the right-hand side of the road.

The plaintiff, because of the head injuries he sustained, has no recollection of the incident but the observations of the other persons present would support a finding that the plaintiff was walking or skateboarding in either the bicycle lane at the edge of the left-hand side of the roadway or in the traffic lane itself.

The objectively determined circumstances are such that a substantial finding of contributory negligence against the plaintiff was inevitable.

Turning to the question of quantum, I have been furnished with a considerable number of reports by medical practitioners and paramedical experts. In total there are reports from two orthopaedic surgeons, four neurosurgeons/neurologists, three psychiatrists and three neuropsychologists. The reports, with relative consistency, describe that the plaintiff suffered the following injuries:

  1. a severe closed head injury;
  1. front lobe contusions by laterally;
  1. intraventricular haemorrhage;
  1. fracture of the right fibula and right calcaneum;
  1. a left peri-orbital haematoma;
  1. left elbow laceration;
  1. psychological shock.

The continuing difficulties for the plaintiff relate to his head injury. This injury has been extensively examined and the effects of the injury subject to a battery of testing. These tests have established that the plaintiff has impaired cognitive functioning, poor concentration, impaired executive functions, loss of motivation, loss of initiative, loss of self-confidence and self-esteem. He has attempted suicide on some occasions. He requires anti-depressive drug therapy and he requires ongoing care which at present is provided by his mother.

Pre-accident the plaintiff had not established any significant employment history or capacity. He left school at the age of 15 whilst he was undertaking year 9 level studies. He then went to full time employment at the fast food outlet where he had previously worked on a part-time basis. After a very short time he ceased that employment and then had a lengthy period of unemployment. He has attempted employment in a number of different locations but had been unable to maintain employment for any significant period.

His disabilities, coupled with his lack of education and his inability to meet physical demands of heavy labouring, would mean that he is effectively unable to work except perhaps in circumstances of an understanding employer who would give him light part-time work.

In the immediate post-accident period the plaintiff required significant amounts of care, up to 40 hours per week. This has reduced in more recent times but is likely to continue on into the future, probably at the rate of approximately seven hours per week.

Having regard to these features, the plaintiff's damages fall to be assessed at a relatively high level. Both the issue of liability and the issue of quantum of damages has been explored quite extensively in an opinion signed by counsel on behalf of the plaintiff, Mr Griffin QC and Mr Dickson. I agree with the remarks that they made in respect to both of these aspects, and I regard the proposed settlement to be well within the range of damages which the plaintiff would be likely to receive if his claim was assessed by a Court. The acceptance of the proposed settlement is clearly within the interests of the plaintiff, and that view is shared by statements of his litigation guardian in her affidavit read before me.

The medical opinion was that the plaintiff did not have the capacity to look after a large sum of money. That is clearly borne out by the opinions of the neurologists, neurosurgeons and psychiatrists. The plaintiff's guardian has proposed that the settlement sums be invested with Perpetual Trustees of Queensland Limited Group. The affidavit of Mr Gallagher details how those funds would be dealt with by his organisation, and has set out the likely cost of that organisation undertaking the role of trustee of those funds.

The parties have agreed that the costs for this activity should be assessed in the sum of $120,000. That assessment is to my mind reasonable and it allows the finalisation of the orders which I now make. Those orders have been set out in a draft which I will now initial and place with the papers.

Close

Editorial Notes

  • Published Case Name:

    Joshua Francis Meagher v Kelly Marie Stribling

  • Shortened Case Name:

    Meagher v Stribling

  • MNC:

    [2005] QSC 300

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    05 Oct 2005

Litigation History

No Litigation History

Appeal Status

No Status