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Garside v Rohan

 

[2018] QSC 295

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Garside v Rohan & Ors [2018] QSC 295

PARTIES:

GLENN STUART GARSIDE

(plaintiff)

v

DAN ROHAN

(first defendant)

TREVOR JAMES MILES

(second defendant)

JEFF ROBERTSON

(third defendant)

QBE INSURANCE (AUSTRALIA) LTD ABN  78 003 191 035

(fourth defendant)

NOMINAL DEFENDANT ABN 65 207 831 553

(fifth defendant)

FILE NO:

Rock No 499 of 2017

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

11 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2018; 3 to 5 September 2018

JUDGE:

Davis J

ORDER:

  1. The claim against each of the first, second, third and fourth defendants is dismissed.
  2. Judgment for the plaintiff against the fifth defendant in the sum of $723,761.64.
  3. The parties be heard on costs.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where the first to fourth defendants sought to lead evidence of a mechanical engineer – where that evidence related to the possibility of the accident occurring as pleaded – where the observations in the report of the engineer were based on unproven assumptions – where the report was not delivered in accordance with the Uniform Civil Procedure Rules or the relevant Practice Direction number 2 of 2005 – whether the evidence should be excluded – if so, on what grounds the evidence should be excluded

EVIDENCE – ADDUCING EVIDENCE – WITNESSES- GIVING EVIDENCE – CROSS-EXAMINATION – AS TO WHAT – PRIOR INCONSISTENT STATEMENTS – where the plaintiff was cross-examined about statements he made about the accident from which he claimed injury to investigators against a written statement he made – where the plaintiff’s counsel required the tender of that written statement – whether counsel cross-examining was obliged to tender the statement – whether counsel should be ordered to tender the statement

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED OR ASCERTAINED – where the plaintiff sued jointly three possible drivers, their insurer and the Nominal Defendant – where the Nominal Defendant pleaded that it was an identifiable vehicle insured by that insurer – where the Nominal Defendant later conceded it was not one of four identified vehicles but maintained that it was another vehicle insured by the insurer – whether the vehicle was an identifiable vehicle – whether the insurer or the Nominal Defendant was liable

Civil Liability Act 2003 (Qld) s 9, s 60

Evidence Act 1977 (Qld) s 19, s 101

Motor Accident Insurance Act 1994 (Qld) s 31, s 52

Uniform Civil Procedure Rules 1999 (Qld) r 423, r 429

Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429, considered

Attorney-General for the State of Queensland v Colin Lovitt QC [2003] QSC 279, cited

Commissioner of Taxation v Everett (1980) 143 CLR 440, applied

Lee v Chai [2013] QSC 136, not followed

Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2013] 1 Qd R 319, considered

Meredith v Innes (1930) 31 SR(NSW) 104, distinguished

R v Collins [2018] Qd R 364, cited 

R v Foggo; ex-parte Attorney-General [1989] 2 Qd R 49, cited

R v McGregor [1984] 1 Qd R 256, distinguished

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, cited

The Queen’s Case (1820) Brod & Bing 284; 129 ER 976, cited

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398, cited

COUNSEL:

M Grant-Taylor QC and R Green for the plaintiff

R Morton for the first to fourth defendants

G Diehm QC and G O’Driscoll for the fifth defendant

SOLICITORS:

Grant & Simpson for the plaintiff

Barry Nilsson for the first to fourth defendants

Moray & Agnew for the fifth defendant

  1. [1]
    The plaintiff, Mr Garside seeks to recover damages for personal injuries suffered by him when he was riding his motorcycle on 25 November 2014 along the Gregory Highway, travelling north from Emerald to Capella.

The issues

  1. [2]
    Mr Garside’s knee was badly injured when an object about the size of a half brick fell from a truck which was travelling ahead of him on the Highway.  He believes that the truck was one operated by JJ Richards & Sons Ltd (JJ Richards), a waste removal company.  After investigations were conducted he sued Mr Rohan, Mr Miles and Mr Robertson, who were the drivers of the three JJ Richards’ truck which were thought to be in the vicinity at the time of the accident.  He also sued the compulsory third party insurer of those three trucks, QBE Insurance (Australia) Ltd (QBE).[1]  As these reasons show, there was doubt as to the identity of the offending vehicle so Mr Garside also sued the Nominal Defendant.[2]
  2. [3]
    QBE was the CTP[3] insurer for not only the JJ Richards vehicles driven by Mr Rohan, Mr Miles and Mr Robertson but also all other trucks operated by JJ Richards.  It follows then that even if a particular truck cannot be identified, if it was a JJ Richards truck, then the truck’s CTP insurer is QBE.  By s 31 of the Motor Accident Insurance Act 1994, the Nominal Defendant is liable only “if the motor vehicle [whose driver was negligent], or insurer under its CTP insurance policy, can not be identified.”  QBE would be liable as the insurer, and not the Nominal Defendant, if the truck was any JJ Richards truck.
  3. [4]
    Mr Rohan, Mr Miles and Mr Robertson were all driving different types of trucks on the day of the accident.  At one point, Mr Garside described the truck concerned in the accident as a liquid waste truck,[4] and at another time described it as an overhead lift truck.[5]  A liquid waste truck has positioned on it a cylindrical tank which holds liquid waste.  An overhead lift track has a mechanism for lifting bins onto the area behind the cabin.[6]
  4. [5]
    Particulars of negligence were delivered in these terms:

“1. As to paragraph 1 of the Request, it is alleged, in the alternative to paragraph 3 below, that one or other of the First, Second or Third Defendants knew of the presence of the rock or rock-like object before driving the vehicle on the Gregory Highway on 25 November, 2014.

  1. As to paragraph 2 of the Request, the following particulars are provided:
  1. (a)
    The facts, matters and circumstances relied on to show that one or other of the First, Second or Third Defendants knew of the presence of the rock or rock-like object before driving the vehicle are that one or other of the Defendants –
  1. (i)
    placed the rock or rock-like object on the vehicle; or
  1. (ii)
    observed the rock or rock-like object on the vehicle; or
  1. (iii)
    while they did not place the rock or rock-like object on the vehicle, and whilst they did not observe the rock or rock-like object being placed on the vehicle, did observe the rock or rock-like object on the vehicle;

before the commencement of the journey during which the accident occurred.

  1. (b)
    The position on the vehicle where the rock or rock-like object was, cannot be particularised. 
  1. As to paragraph 3 of the Request, it is alleged, in the alternative to paragraph 1 above, that one or other of the First, Second or Third Defendants ought to have known of the presence of the rock or rock-like object before driving the vehicle on the Gregory Highway on 25 November, 2014.
  1. As to paragraph 4 of the Request, the following particulars are provided:
  1. (a)
    The facts, matters and circumstances relied on to show that one or other of the First, Second or Third Defendants ought to have known of the presence of the rock or rock-like object before driving the vehicle are that, before the commencement of the journey during which the accident occurred, an inspection of the vehicle ought to have taken place which would have revealed or otherwise brought to the knowledge of the driver the presence of the rock or rock-like object on the vehicle so as to afford an opportunity to remove or secure the rock or rock-like object.
  1. (b)
    The position on the vehicle where the rock or rock-like object was cannot be particularised.”[7]
  1. [6]
    It was common ground that the particulars of negligence described the negligence alleged not only against the first, second and third defendants, but also against the driver of any unidentified JJ Richards truck that was involved in the accident, or any other unidentified vehicle insured by the Nominal Defendant by force of the Motor Accident Insurance Act.[8]
  2. [7]
    Another driver named Mr Nathan Ryder was employed by JJ Richards at Emerald at the time and his truck was scheduled to take a journey which would have placed him in the vicinity of the accident at the relevant time.[9]  It was QBE’s case that Mr Ryder’s truck was not on the road on the day of the accident.
  3. [8]
    Both QBE and the Nominal Defendant took the position that whether the truck involved in the accident was a JJ Richards truck or whether it was some unidentified vehicle, no negligence had been proved.
  4. [9]
    Mr Garside claimed damages under various heads but an agreement was reached on all except present and future economic loss.
  5. [10]
    The issues then are:
  1. (i)
    was the vehicle involved in the accident one of the vehicles driven by any of Mr Rohan, Mr Miles, Mr Robertson or Mr Ryder; and if not
  2. (ii)
    was the vehicle involved in the accident another vehicle operated by JJ Richards (and therefore insured by QBE); and
  3. (iii)
    is negligence proved against the driver of the truck involved in the accident; and
  4. (iv)
    what is the past and future economic loss of Mr Garside?
  1. [11]
    At the beginning of the trial, QBE sought to tender a report of a civil engineer, Dr Gilmore.[10]  Mr Grant-Taylor QC, who led Mr Green of counsel for Mr Garside, objected to the tender of that report.   Mr Grant-Taylor QC tendered for identification a report of another engineer, Mr Boyd.[11]  Mr Boyd assessed Dr Gilmore’s report.  Mr Grant-Taylor QC intended to tender Mr Boyd’s report into evidence in the event that I held that Dr Gilmore’s report was admissible.  I ruled that Dr Gilmore’s report was inadmissible and indicated that I would give reasons for the ruling at a later point.  Tender of Mr Boyd’s report was not pressed.
  2. [12]
    Mr Morton of counsel who appeared for QBE cross-examined Mr Garside on the contents of a written statement that he had given.  Mr Diehm QC, who appeared for the Nominal Defendant, required Mr Morton to tender Mr Garside’s statement.  Mr Morton resisted the tender but I required him to tender the statement (which he did),[12] and I indicated that I would deliver reasons for that ruling at a later time.
  3. [13]
    My reasons for both of those rulings are given in this judgment.

Liability

Mr Garside’s evidence

  1. [14]
    On 25 November 2014, Mr Garside was driving his BMW motorcycle on the Gregory Highway.  He was north of Emerald and heading towards Capella where his family has agricultural properties.  The weather conditions were good.[13]
  2. [15]
    Between about 6.15 am and 6.20 am, Mr Garside found himself behind a bus operated by a company Emerald Coaches.  Other evidence shows that the bus was driven by Robert Mooney.  Mr Garside could see that in front of the bus was a liquid waste tanker.  He was asked by Mr Grant-Taylor QC to describe the truck.  He said:

“I want you to tell his Honour as much as you can of your recollection – of your description of the truck.  What were the – what were its features?---The features of the truck were it was olive green on the back of a white cab with a white [indistinct] with a – an eight wheel configuration.  It had JJ Richards printed on the side of the olive green tank.”[14]

  1. [16]
    Mr Garside remained behind the bus while all three vehicles passed over the Theresa Creek Bridge.  It is common ground that the Theresa Creek Bridge is 10 kilometres from the JJ Richards depot at Emerald.[15]  There is a bend in the road just after the bridge and once that was negotiated Mr Garside pulled out to position himself to overtake.  Then:

“And what happened?Well, I noticed – I observed that there was nothing – no oncoming vehicles.  I looked back towards the truck and noticed something come off it in a falling motion.  I observed what I believed to be was a piece of concrete half the size of a house brick.  I then noticed it bounced directly behind the truck.  It took a direction across the dotted lines.

To your right or   ?To my right. 

Yes?It then bounced to my right.  I was sitting on the dotted lines.  I probably accelerated maybe to 100 kilometres an hour preparing to overtake.  It then bounced and pinged back directly into my motorbike. 

What part of the bike or what part of you or what part of both did the object strike?It struck – it grazed the fender on my motorbike and it struck my kneecap. 

What happened then?Knocked my knee from its position – my foot from its position.  I was able to regain control and then pull immediately over.”[16]

And later:

“MR GRANT-TAYLOR:   Where was the object in its falling motion relative to the width of the back of the truck?It was slightly off to the right of the centre of the vehicle. 

Carry on, please?It was about half the size of a house brick or a closed fist.

What colour was it?It was grey in colour. 

HIS HONOUR:   Did you actually   

WITNESS:   The   

HIS HONOUR:   I’m sorry.  Did you actually see it fall off the truck or did you see it   ?I see it in the falling motion from the truck.

Right.  I see?I didn’t actually see where it had jumped out from.

I see.  Sorry. 

MR GRANT-TAYLOR:   And relative to the road’s surface, what height was the object   ?Well, I   

   when you first observed it?I estimate it to be about 800 mil from the road surface.

A little less than a metre?Yes.

In terms of the way that the object moved from the moment that you first saw it – you’ve described it bouncing on the road, how did it move relative to the movement of the truck?It carried the forward momentum of the vehicle that it came from. 

And what do you mean by that?---It wasn’t flicked back.  It was moving forward with the motion of the vehicle as it fell.”[17]

  1. [17]
    Mr Garside and his partner, Ms Skye Scott returned to the area of the accident to search for the object that had struck Mr Garside’s knee but the object could not be located.[18]
  2. [18]
    Under cross-examination by Mr Morton of counsel for the first to fourth defendants, Mr Garside said:

“And you’d commonly see other chemical trucks with green waste tanks on the road?I have seen a few, but not quite as many.

Yeah.  But there are others around Emerald, aren’t they?There is.  Yeah.  Possibly one or two.  I’m not sure.

Yep.  Suez or Sita, I think, that operates one around Emerald?---That’s right.”[19]

  1. [19]
    Mr Morton suggested to Mr Garside that after the accident he rang JJ Richards and spoke to Jonathon Fisher, who is now the company’s Central Highlands general manager; then the manager of the Emerald depot.  This exchange occurred:

“And you told him that at about 6.15 to 6.25, you’d been riding along the highway?That’s right.

You told him that there was the Emerald bus?Yes.

And in front of that was a JJ Richards truck?Yes.

That it was an overhead lift truck?I think I made a mistake in my description when I   

Do you agree with me that you told him it was an overhead lift truck?I wasn’t entirely sure of the – I just said it was a JJ Richards truck.

No.  Do   ?He asked me   

HIS HONOUR:   No.  What counsel is asking you is not what type of truck it was?Yep.

He’s just asking you about the conversation?That’s right.  Yeah.

So it’s being put to you that you described the truck to the JJ Richards person as an overhead lift truck?Yeah, I said it may have been an overhead lift truck.  I wasn’t   

Right?    entirely sure.

MR MORTON:   Well, an overhead lift truck is quite different to a chemical waste truck, isn’t it?It is, yeah.

See, I suggest that you had no real reason to pay any attention to what this truck was at any time before your knee was struck?I recognised the liquid waste truck as a truck that was in front of the thing.  It was just an error in my description to Jonathon Fisher.”[20]

Then a little later:

“See, I suggest you couldn’t possibly have mistaken an overhead lift truck for a chemical waste truck if you’d been paying any attention to what it was, in fact, in front of the Emerald bus?Well, I – when I seen the liquid waste truck, I, you know, relayed that description to Jonathon Fisher and   

 No, no.  You agreed with me you told him it was an overhead lift truck?Yes, I did.

Didn’t you?  And he said to you, “We don’t have any overhead lift trucks in that area at the time”, didn’t he?Yes, he did

And you said, “Well, it could’ve been a town truck” or something like that?I didn’t say that.

Because when you first spoke to Mr Fisher, you thought it was an overhead lift truck, didn’t you?That was my description of it. 

It’s quite different   ?I know they’re quite different, yes.  And the liquid waste truck is the truck that I saw.

Well, is that because you’ve convinced yourself subsequently that that’s what it must have been?No.  That is the vehicle that I saw.”[21]

  1. [20]
    Mr Fisher was called by Mr Morton.  Mr Fisher gave evidence of his conversations with Mr Garside.  That evidence was consistent with what Mr Morton put to Mr Garside.[22]
  2. [21]
    Mr Morton suggested to Mr Garside that in a conversation with a police officer, Constable Galea, Mr Garside didn’t mention the signage on the side of the truck.  Mr Garside thought that he had mentioned that to the police officer.[23]  The police officer was not called to give evidence.
  3. [22]
    An investigator took a statement from Mr Garside which came into evidence through cross-examination by Mr Morton[24] which described the falling of the object this way:

“As I was on the centre line and shortly before I commenced to overtake [sic], I recall first seeing an object mid-air about 1 metre behind and off from the driver side of the rear of the vehicle and approximately 800mm from the ground it had maintained its momentum consistent of [sic] having fallen off the truck it then bounced up off the road from behind the truck.  Its trajectory then changed and it crossed the centre line while loosing [sic] forward momentum.  The bus I would say was travelling two or three car lengths behind the truck.  Given the angle it was travelling it was obvious it had come from the truck, missing the bus.”[25]

  1. [23]
    Ultimately, Mr Garside’s position was:

“Well, what I’m suggesting to you is that you saw it off to the driver’s side and the rear of the vehicle when you first saw it. That’s what it says there?---It was off the – from the centre of the vehicle, it was slightly off to the driver’s side. So it was still behind the vehicle.”[26]

  1. [24]
    Mr Garside in his statement[27] described the object as:

“...[I] can’t be certain what it was.  I recall that it was about the colour of concrete.  It was about half the size of a house brick.  I didn’t pay any attention as to whether it had smooth edges or jagged ones.  There were a couple of scratches about 90mm apart on my bike which suggest that it may have had a jagged edge.  It also bounced unevenly off the road, which might have also meant that it had jagged edges; but I honestly can’t say whether it did or didn’t.  I can’t say whether it was a piece of concrete or rock, other than to say it was about the colour of concrete.”[28]

  1. [25]
    Under cross-examination by Mr Diehm QC, who led Mr O’Driscoll for the Nominal Defendant, Mr Garside said:

“Okay.  As you proceeded around the left-hand bend, could you see the JJ Richards truck?I couldn’t see the JJ Richards truck[29] as we traversed the bend.  But I saw the JJ Richards truck as I came up behind the Emerald Coaches.

I see.  So before you got to the creek crossing, you had seen the truck itself?That’s right.

Had you been able to see at that stage a side view of the truck?I hadn’t at that stage taken a full account of the side view of the truck.

Okay.  Your side view of the truck came at the point in time as you were preparing for your intending overtaking of that;  is that right?Yeah, that’s right.

Now, as you did that – that is, as you prepared to overtake the bus in the first instance, you’ve described, as I understand it, moving your motorcycle out onto or about the position of being on the centre line;  is that right?Yeah, that’d be pretty close.

And the bus was travelling some distance to the left of the centre line, I should take it?Yes, it was hugging the fog line.

So it was enough for you to have a view ahead of the truck at that stage?That’s right.”[30]

  1. [26]
    Mr Garside gave no evidence that he noticed any signage on the back of the truck.[31]

Mr Mooney’s evidence

  1. [27]
    Mr Mooney was called by Mr Diehm QC.  There seems no doubt that Mr Mooney was driving the Emerald Coaches bus, which was between the green truck and Mr Garside’s motor vehicle at the time of the accident.  Mr Mooney collected passengers at Emerald at about 6.10 am.[32]  He then drove those passengers to the Crinum Mine site and in doing so, drove through the spot where Mr Garside was injured.[33]  That spot was about 6.6 kilometres from Emerald.[34]  Consequently, Mr Mooney could not have been at the accident site before 6.15 am at the earliest.
  2. [28]
    Mr Mooney’s route caused him to turn off the Gregory Highway at Lilyvale Road, about 16 kilometres north of Emerald.[35]  He followed the green truck up to that point.  As he turned off the highway, the green truck continued north.
  3. [29]
    While Mr Mooney noticed a motorcycle (obviously the one ridden by Mr Garside) in his rear vision mirrors, he did not see anything fall from the truck, nor did he see what became of Mr Garside.[36]
  4. [30]
    As to the identity of the truck, Mr Mooney said:

“Now, with respect to the truck that was in front of you, did you at any stage, as you travelled in and behind and near this truck, see anything in terms of signs or symbols that indicated to you what truck it was?Basically the colouring.

The colouring.  And what did you see of its colour?It was a green tank-type system with a white chassis.

Okay.  And what sort of truck was it?A rigid-type truck, single – I presume – sorry.  I’m not sure whether it was a twin-axle or a single-axle with a tanker on it – just a cab over-type set-up.

All right.  Now, as you turned into Lilyvale Road, did you look again towards the truck?I did.

And did you see anything on the truck to identify   ?I   

   to you what – whose truck it was?I did notice it was a JJ Richards truck with gold signing down the side of the truck.

Did you, whilst you were behind the truck, notice anything about the mudflaps of the truck?No.

Do you recall as to whether or not you saw any signage on the back of the truck when you were behind it?To be honest, no.  I – I just don’t remember.

You don’t remember?No.”[37]

  1. [31]
    Mr Morton carefully cross-examined Mr Mooney about the interactions he had with the police investigating the accident and with office staff of Emerald Coaches who had passed on information to him from the police.  That information was that it was believed that the truck involved in the accident was a JJ Richards truck.[38]  The point of this cross-examination was to provide a foundation for Mr Morton’s later submission that Mr Mooney had fallen victim to the power of suggestion, the seed having been sowed by the police that the truck was a JJ Richards truck.  In particular:

“Yeah.  That’s what this person, the office staff, said to you, that the concrete had come off the back of a JJ Richards truck?Yes.

That was the first you’d ever thought it was a JJ Richards truck, wasn’t it?No.  The reason I noticed it was a JJ Richards truck was because it had slowed us – slowed me down.  I was just wondering what the truck was.

So it was just the fact that the truck was going at 90, 95?Correct.  Yes.

That’s the only reason you thought it was a JJ Richards truck?Yes.”[39]

  1. [32]
    Then, critically:

“I understand that, Mr Mooney.  Now, you didn’t recall seeing any signage on the back of the truck as you drove along?No.

And you drove along, and you’re going to turn right into Crinum Road – into Lilyvale Road?Yes.

Put your indicator on, I take it?Yes.

Slow down, I take it?Yes.

The Gregory Highway is 100 kilometres an hour there?It is – it’s a dual turning lane.  You’ve got a right-hand lane to go down.  It’s about 200 metres [indistinct]

I’ve got you, but you can’t take the turn at 100 ks an hour?No.  No.  No.  No.

What do you get down to to take the turn?Thirty or 40 kilometres.

So, meanwhile, the truck’s going away from you?Yes.

At 90, 95 ks an hour?Yes [indistinct] yes.

And you slow down to what speed to go round the corner?Thirty kilometres.

And, as you turn   ?I’m looking for oncoming traffic.  Yeah.

Of course you’re looking   ?Yeah.

   for oncoming traffic, Mr Mooney.  You’re not going to turn across oncoming traffic.  Do you remember if there was any?I wouldn’t have turned if – I’d say no.

Well, there certainly wasn’t when you turned, was there?No.  No.  No.

Because there was no smash?No.

But there might’ve been – you might’ve had to slow down more to let it come on?Yes [indistinct]  I   

I take it – I’m sorry, Mr Mooney.  Did you want to say something?No.  No.  No.

I take it, as you come up to the intersection, you’re getting into your right-hand turning lane.  You move into the right-hand turning lane as you’re coming up to the turn?Yes.

And I take it, if there is oncoming traffic, you can see it a fair way off?Yes.  Yes.

And so you slow down so as you don’t come to a complete stop, I take, and have to – if you can?If – yes.

Now, you turn – you make your turn, and you’re looking for traffic in Lilyvale Road, I take it?Yes.  Not in – coming down the highway.

But you’ve already worked out there’s nothing coming   ?Yeah.

   that you’re going to run into?Well, there’s no real point looking for traffic, because you’re on the other side of the road, but, yes, you are right.  You do look for traffic.

No.  Perhaps we’re at cross-purposes, Mr Mooney.  You’re – let’s start again.  If I’m unclear, Mr Mooney, please tell me, and I’ll try and fix it up.  You’re coming up to the intersection.  You’re sitting in your lane of travel, the left-hand lane.  Is that right?The middle lane, to – yeah.  To come up to Lilyvale turn-off.  Yes.  I’m in the left hand   

Yeah. Doing 90 or 95 kilometres an hour   ?Yes.

   behind another vehicle?Yes.

The other vehicle’s doing 90 or 95 kilometres an hour?Yes.

You come up – you move into the right-hand turning lane?Yes.

Indicator on?Yes.

Check there’s nothing coming?Yes.

You don’t actually remember whether there was or there wasn’t.  That’s understandable.  It’s four years ago, but it’s the case, isn’t it?Yes.  Yes.

And you make your turn, when safe, into Lilyvale Road?Yes.

So you’re looking into Lilyvale Road to make sure you’re not going to run into or over something?Yes.

And when do you see this signage?When I’m in – when I’m turning, when I’m actually doing the [indistinct]  I had a quick look around, you know, like   

Quick look where?Had a quick look down the highway.

And there’s a truck going away from you with gold lettering on it?Yes.

Gold lettering?Yellow, gold.  Yes.

Yeah.  The only reason you thought it was a JJ Richards truck is it was doing 90 kilometres an hour?Yes.”[40]

  1. [33]
    It can be seen that Mr Mooney mentioned that an identifying feature in his mind was the speed of the truck (about 90 kilometres per hour).  Mr Diehm QC attempted to re-examine Mr Mooney to no doubt clarify that the speed of the truck was significant as an identifying feature to Mr Mooney because JJ Richards trucks are known to be speed limited to 90 kilometres per hour.  That re-examination failed,[41] but there was other evidence that JJ Richards trucks were speed limited[42] and I draw the inference that Mr Mooney knew that.

Mr Rohan’s evidence

  1. [34]
    On 25 November 2014, Mr Rohan, then employed as a truck driver by JJ Richards, was tasked with travelling to the Oaky Creek Coal Mine near Tieri, Queensland in a roll on/roll off truck fitted out with a chemical waste tank bearing the registration number 755SHO.[43]  The entrance to the Mine site has an electric gate that is accessed by swipe card.[44]  That gate is some 102 kilometres from the JJ Richards depot in Emerald,[45] a journey of between approximately 75 and 90 minutes.[46]  It is therefore 92 kilometres from the bridge at Theresa Creek.
  2. [35]
    Mr Rohan commenced work at 5 am on 25 November 2014.[47]  While he did not purport to recall the specific events of 25 November 2014, he gave evidence of his practice.  He would routinely start the engine of the truck and let it warm up while doing paperwork and a safety check.[48]  He described checking tyres, lights, fluid levels and the engine, and checking for unsecured items and removing any that he found.[49]  He said in evidence-in-chief that he expected he would have left the JJ Richards depot “[p]robably by quarter past 5” in the morning.[50]  In cross-examination, Mr Diehm QC suggested that he could have left later than 5.15 am.  He agreed,[51] but there was other evidence which suggests that he was well north of the accident site by the time Mr Garside was injured.
  3. [36]
    Evidence came from an officer of the Oaky Creek Coal Mine that the swipe card system at the entry gate showed that Mr Rohan arrived on 25 November 2014 at 7 am.[52]  When it was put to Mr Rohan in cross-examination by Mr Diehm QC that he must have left the depot between 5.30 and 5.45 am, he accepted that it “could well have been” and that there was nothing particularly unusual about it taking up to 45 minutes for him to leave the depot.[53]
  4. [37]
    As already observed, the scene of the accident was about 10 kilometres from the JJ Richards depot at Emerald.  Therefore, the accident site was about 92 kilometres from the mine gate.  Even assuming that Mr Rohan managed to consistently maintain 90 kilometres per hour speed, it would take him a fraction over an hour to cover the distance between the accident site and the mine gate.  At the very earliest then Mr Rohan passed through the accident site at 6 am.  It’s probable, of course, that Mr Rohan could not maintain the truck’s top speed over the entire journey.  Therefore, it has taken him longer than an hour to cover the distance between the accident site and the mine, and therefore he has passed through the accident site well before 6 am.

Mr Miles’ evidence

  1. [38]
    On 25 November 2014, Mr Miles was driving a JJ Richards semi vacuum tanker with the vehicle registration 420SBM.[54]  He started his shift by changing the pump water in his truck.  He recorded this in his timesheet as taking from 5 am to 5.30 am.[55]  Like Mr Rohan, Mr Miles performs a routine safety check, including checking for loose objects on the body work before embarking on a journey.[56]  His run that day was to Middlemount Coal Mine, some 140 kilometres away from the JJ Richards depot.[57]  His first job that day involved pumping out a septic tank at Middlemount, which he finished at 7.30 am that morning.[58]  He gave evidence that to complete the task by that time would have required him to arrive 15 to 20 minutes earlier than 7.30.[59]
  2. [39]
    Mr Miles’ truck was also speed limited to 90 kilometres per hour.  Middlemount is 140 kilometres from the JJ Richards depot, and therefore 130 kilometres from the Theresa Creek bridge.  If Mr Miles drove the whole way at 90 kilometres per hour, it would take approximately 85 minutes to travel from the bridge to Middlemount.  In order to have arrived at Middlemount at 7.15 am, Mr Miles would have left the bridge by well before 6 am. 

Mr Robertson’s evidence

  1. [40]
    On 25 November 2014, Mr Robertson was driving a JJ Richards overhead lift truck with the registration number 793SBL.[60]  The truck is one with forks attached to the front of the truck to pick up industrial bins and swing them over the head of the cabin and into the back of the truck.[61]  Mr Robertson on that day was tasked with a general rubbish run through Capella, Tieri, the Oaky Creek Coal Mine and Middlemount and to the Tieri Landfill.[62]
  2. [41]
    Unlike Mr Rohan and Mr Miles, Mr Robertson made many short stops to pick up rubbish along his run and there is no record of the times at which he arrived at particular places.
  3. [42]
    Mr Robertson is a truck driver of some thirty years’ experience.[63]  He described in evidence the process he went through each morning: picking up his run sheet, making a coffee to take in his travel mug, doing a check of his truck, and starting his run.[64]  He said this took about 15 minutes.[65]  Mr Robertson said that it took about 10 minutes to travel from the JJ Richards depot to Theresa Creek, which accords with its distance of 10 kilometres away.  I accept his evidence.  He can therefore be expected to have passed the bridge around or before 5.30 am. 

Mr Ryder’s evidence

  1. [43]
    Mr Ryder is another truck driver, who was also employed by JJ Richards in November 2014.[66]  The truck he drove on 27 November 2014, that is, two days after the accident, was a liquid waste truck bearing the vehicle registration 744LIT.[67]
  2. [44]
    On 25 November 2014, that truck was scheduled to complete the run that was completed by Mr Rohan in his truck.[68]  However, Mr Ryder’s truck was off the road that day with mechanical issues;[69] another driver, Mr Matt Clarricoats, had taken it to the JJ Richards depot workshop due to an issue with its cruise control.[70]

Mr Fisher’s evidence

  1. [45]
    Mr Jonathon Fisher, who in November 2014 was the manager of the JJ Richards depot at Emerald, said that the trucks driven by Messrs Rohan, Miles and Robertson were the only trucks from the Emerald depot that went north along the Gregory Highway on 25 November 2014.[71]
  2. [46]
    Mr Fisher gave evidence that CQ Compost is an enterprise which composts liquid waste.  Its operations are conducted from a site five or six kilometres east of Emerald.[72]  CQ Compost would attract trucks from other JJ Richards depots at Clermont, Mackay and Townsville.[73]  Of those depots, the closest is Clermont, which is more than 100 kilometres from Emerald.  A bundle of run sheets was tendered from the Clermont depot.[74] 
  3. [47]
    On 25 November 2014, only one truck whose run sheet was included in the bundle from the Clermont depot came through Emerald to CQ Compost.  That truck was driven by a driver whose shift started at 4.30 am, and whose run to CQ Compost was finished at 11 am.[75]  Without more evidence, such as evidence from the driver, it is impossible to be clear about that truck’s movements.  It is probably more likely than not that the driver was going north from Emerald along the Theresa Creek Bridge at closer to 9 am than 6.15 am. 
  4. [48]
    Mr Fisher said that JJ Richards vehicles travelling to CQ Compost from outside Emerald would likely be B-double road transport vehicles.[76]  Further, any truck travelling from Gladstone, where JJ Richards had a depot, would not enter Emerald and would not travel over the area of the accident site.[77]  Under cross-examination, Mr Fisher said that JJ Richards trucks from Stapylton, Clermont and Roma were sometimes in the Emerald area.[78]
  5. [49]
    Under cross-examination by Mr Diehm QC, Mr Fisher said:

“Now, all JJ Richards trucks as at November of 2014 had mudflaps on them that would identify them as JJ Richards trucks?That’s normal practice.  I can’t say every truck would, but that’s generally what we ought to have.

Well, could you recall seeing a JJ Richards truck that did not have mudflaps marked JJ Richards upon it?Not recently, no.

HIS HONOUR:   Well, what about in 2014? [indistinct]  I’ve said it’s – it’s – we want mudflaps with JJ Richards on there, but if there was no mudflaps that had JJ Richards on them, we would get mudflaps that didn’t have it.  I mean, I can’t say when the last time was that I had seen one that doesn’t have JJ Richards mudflaps.

MR DIEHM:   Thank you.  Most JJ Richards trucks had the name JJ Richards marked on the truck, painted on the truck itself;  is that right?Or by sticker, yeah, correct.

And the name would appear on the truck cab itself?Correct.

It would appear on any tanker or skip or other container on the back of the truck?The skips, maybe not.  Not a regular thing to have the name on the back of the skips, but, generally, the others would.[79]

Mr Coombes’ evidence

  1. [50]
    Mr Coombes is the Operations Manager for Suez, which conducts a business in Emerald of collecting both solid and liquid waste from coalmines.[80]  Although the trucks are now painted blue, in November 2014 the trucks were light green.[81]  The trucks operated were both liquid waste trucks and roll-on roll-off trucks.[82]  Two of the mines that were serviced by the company were north of Emerald.
  2. [51]
    In 2014, the company was called Sita and the trucks were marked with that name on the sides and some had additional signage on the rear.[83]  Mr Coombes could not recall Sita trucks ever having mud flaps which bore the Sita name.[84]
  3. [52]
    Unlike the JJ Richards drivers who started work at 5 am, the Sita drivers would start work at 6 am.[85]  A pre-start procedure would be undertaken which would typically take 10 to 15 minutes.[86]  The Theresa Creek Bridge is about 15 to 20 minutes from the Sita depot if driving in a truck.[87]  The pre-start would include routinely checking for hazards including loose objects on the truck.[88]
  4. [53]
    Sita trucks were not speed limited.[89]  Unlike the JJ Richards operation, it seems that not all Sita trucks kept run sheets.[90]  The Sita operation appears to have been somewhat disorganised.  Mr Coombes described the way which the drivers went to their trucks in the depot “as moving a flock of sheep”.[91]

Was the vehicle involved in the accident one of the vehicles driven by any of Mr Rohan, Mr Miles, Mr Robertson or Mr Ryder?

  1. [54]
    As the evidence unfolded it became obvious that the truck that was in front of Mr Mooney’s bus was not a truck driven by any of Mr Rohan, Mr Miles, Mr Robertson or Mr Ryder.  Mr Rohan and Mr Miles could not have been at the accident site after 6 am.  Mr Robertson passed through much earlier.  Mr Mooney did not pick up his passengers until 6.10 am.  By the time he (and therefore Mr Garside and the green truck) had made their way to the accident site, Mr Rohan, Mr Miles and Mr Robertson were long gone.  Mr Ryder’s truck was not even on the highway on that day; it was in the workshop. 
  2. [55]
    Mr Diehm QC for the Nominal Defendant conceded that the green truck involved in the accident was not one driven by any of Mr Rohan, Mr Miles, Mr Robertson or Mr Ryder.[92]  That concession was properly made as a sensible reaction to the evidence.  Mr Green for Mr Garside[93] refuse to make a similar concession.  That approach was odd for a couple of reasons:
  1. (i)
    the evidence was quite clear; and
  1. (ii)
    if the green truck was in fact one of the ones driven by Mr Rohan, Mr Miles or Mr Robertson,[94] then Mr Green had to establish negligence in the face of their evidence that they would have conducted proper mechanical and safety checks before embarking on their respective journeys.
  1. [56]
    In any event, for the reasons already given, I find that the green truck was not one driven by any of Mr Rohan, Mr Miles, Mr Robertson or Mr Ryder.

Was the green truck another unidentified JJ Richards truck?

  1. [57]
    There are two witnesses who say that they saw the green truck and that it was signed “JJ Richards”: Mr Garside and Mr Mooney.
  2. [58]
    I find that both Mr Garside and Mr Mooney were witnesses who were honestly attempting to be truthful.  However, I do not accept their evidence that they saw that the green truck was signed “JJ Richards”.
  3. [59]
    Mr Garside was travelling along the highway at speed.  Before the object fell from the green truck and headed towards him, he would have had no reason to actively identify the truck.  Once the object fell from the truck and struck him, Mr Garside’s attention would hardly have been upon identifying the truck.  He had been seriously injured and was no doubt occupied by manoeuvring his motorcycle safely to the side of the road.
  4. [60]
    As the evidence of Mr Fisher shows, after the accident Mr Garside was unsure as to whether the truck was an overhead lift truck or a liquid waste truck.  Mr Garside did not handle Mr Morton’s cross-examination on that point well.  Mr Garside was attempting to truthfully answer Mr Morton’s questions, but was clearly struggling to explain his conversation with Mr Fisher.  In the end, his evidence was, “It was just an error in my description to Jonathon Fisher.”[95]  Of course, the issue is this: why was there such an error?  I find that Mr Garside did not undertake a conscious view of the side of the truck, which is understandable in the context of the accident in which he was injured. 
  5. [61]
    Further, Mr Fisher’s evidence makes it highly likely that if the green truck was a JJ Richards truck it would have had rear signage or at least signage on the mudflaps.  That fact makes Mr Garside’s evidence that he identified the vehicle by looking at side signage unlikely.
  6. [62]
    As already observed, Mr Mooney did not see any object fall from the green truck.  Until he learnt of the injury to Mr Garside, there was no reason for him to have taken any real interest in the green truck.  Mr Mooney, I find, drew the conclusion that it was a JJ Richards truck because:
  1. (i)
    it was green;
  1. (ii)
    it was a liquid waste truck;
  2. (iii)
    it was travelling at about 90 kilometres per hour and he knew JJ Richards trucks were speed-limited (or drew such a conclusion from experience); and
  3. (iv)
    the police and his office staff had told him that the vehicle was suspected to be a JJ Richards truck.
  1. [63]
    Mr Mooney’s evidence that he noticed the truck’s signage was, although no doubt honestly given, unconvincing.  At the time Mr Mooney says he noticed the signage on the side of the truck, Mr Mooney was in the process of executing a right-hand turn off the Gregory Highway into Lilyvale Road.  His attention was, as he said in evidence, upon looking out for oncoming trafficking, and upon manoeuvring his bus across the southbound lane and into Lilyvale Road.  There was no reason for him to look at the side of the green truck as it sped away from his slowing bus.  He had no interest at that point in the identity of the green truck.
  2. [64]
    Further, Mr Mooney did not notice any signage on the rear of the green truck.  Mr Mooney identified the truck as a liquid waste truck and Mr Fisher said that there was JJ Richards signage on the back of JJ Richards liquid waste trucks.  Mr Mooney also did not, it seems, notice any signage on the mudflaps of the green truck.  It is illogical to think that Mr Mooney would not notice signage on the rear and the mudflaps of the green truck but look to its side signage.
  3. [65]
    Further still, Mr Mooney described the side signage as including gold lettering.  On the photographs in evidence, the lettering on JJ Richards trucks is white.[96]
  4. [66]
    Having rejected the evidence of Mr Garside and Mr Mooney identifying the truck as a JJ Richards truck, the issue is whether there is a circumstantial case to that effect. 
  5. [67]
    Mr Diehm QC raised a Jones v Dunkel[97] point.  He submitted that QBE could have called evidence establishing the whereabouts of all JJ Richards trucks on the day of the accident.  He said that the failure to do so should lead to an inference that such evidence would not have assisted QBE.
  6. [68]
    Mr Garside’s case as pleaded clearly is that the green truck may have been a JJ Richards vehicle other than the ones specifically identified, so that was a live issue between Mr Garside and QBE, and, therefore, given the scheme created by the Motor Accident Insurance Act, was a live issue between QBE and the Nominal Defendant.
  7. [69]
    However, in assessing whether it was reasonable to expect QBE to call that evidence, I take into account:
  1. (i)
    JJ Richards is not a party to the proceedings;
  2. (ii)
    the Nominal Defendant specifically pleaded that the green truck was one driven by one of Mr Rohan, Mr Miles or Mr Robertson;[98]
  3. (iii)
    the Nominal Defendant did not seek third party disclosure from JJ Richards;
  4. (iv)
    Mr Fisher explained in a general way the operations of JJ Richards, which tends to suggest that it is unlikely that an unidentified JJ Richards truck would have been travelling through the accident site at the relevant time.
  1. [70]
    I do not draw an inference that the evidence which may be in the possession of JJ Richards as to the movement of their vehicles to and from depots other than Emerald would have been adverse to QBE’s defence of the claim. 
  2. [71]
    I do not conclude that it is more likely than not that the green truck was a JJ Richards vehicle.  It is just as likely that the green truck was an unidentified vehicle from some other operation. 
  3. [72]
    CQ Compost attracts trucks from far and wide.  There is no evidence as to what companies beyond JJ Richards and Sita (now Suez) use that facility.
  4. [73]
    While Mr Coombes’ evidence might suggest that it is unlikely that the green truck was a Sita truck, that inference is weakened by the fact that the Sita operation appears somewhat disorganised; by its lack of run sheets, for example.  A driver who started work at 6 am and left in their truck immediately may reach the accident site by 6.20 am.  Further, neither eye witness (Mr Garside and Mr Mooney) saw signage on the rear of the green truck or on the mudflaps of the green truck.  Sita trucks had no signage on the mudflaps and not all had rear signage.  While there is no basis upon which a positive finding could be made that a Sita truck was involved, that is a real possibility. 
  5. [74]
    The vehicle and the vehicle’s insurer cannot be identified.  The insurer is therefore the Nominal Defendant.[99]  The claims against each of the first to fourth defendants should be dismissed. 

Negligence

  1. [75]
    I find that the object which hit Mr Garside fell from the green truck.  I reject the contrary submission that the rock may have been thrown up from the road.  I reject that submission because:
  1. (i)
    the object was quite obviously a large one that is unlikely to have been thrown from the road’s surface;
  1. (ii)
    I accept Mr Garside’s evidence that he saw the object falling to the right side of the truck from a height of about 800 millimetres;
  2. (iii)
    I accept Mr Garside’s evidence that the rock was moving in a forward trajectory.  That is inconsistent with the object being propelled from the road at Mr Garside, and consistent with it travelling on the truck (therefore at the same speed as the truck) and falling from it.  As it fell from the moving truck and its forward momentum slowed relative to the truck and the speed of Mr Garside’s motorcycle, it has collided with Mr Garside.
  1. [76]
    Section 9 of the Civil Liability Act 2003 (Qld) provides as follows:

9 General principles  

  1. (1)
    A person does not breach a duty to take precautions against a risk of harm unless—
  1. (a)
    the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  1. (b)
    the risk was not insignificant; and
  1. (c)
    in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. (2)
    In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
  1. (a)
    the probability that the harm would occur if care were not taken;
  1. (b)
    the likely seriousness of the harm;
  1. (c)
    the burden of taking precautions to avoid the risk of harm;
  1. (d)
    the social utility of the activity that creates the risk of harm.”
  1. [77]
    Section 9(1)(b) is a statutory alteration of the test of foreseeability laid down by the High Court in Wyong Shire Council v Shirt.[100]  There, the High Court identified a risk which is “a risk which is not farfetched or fanciful is real and therefore foreseeable.”[101] 
  2. [78]
    The Civil Liability Act came about upon a report of a committee appointed to conduct a review of the law of negligence.  That committee described the test in s 9(1)(b) as:

“the phrase “not insignificant” is intended to indicate a risk that is of a higher probability that is indicated by the phrase “not farfetched or fanciful” but not so high as might be indicated by a phrase such as “a substantial risk”.  The choice of a double negative is deliberate, we do not intend the phrase to be a synonym for “significant”.  “Significant” is to indicate a higher degree of probability then we intend.”[102]

  1. [79]
    In Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd,[103] Fraser JA,[104] said of s 9(1)(b) and its effect upon the principles in Wyong Shire Council v Shirt:[105]

“…the provision was designed to increase the degree of probability of harm which is required for a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the ‘not insignificant’ test must be applied instead of the somewhat less demanding test of ‘not far-fetched or fanciful’.”

  1. [80]
    Consistently with the relevant speed limits in Queensland, vehicles on an open road travel in the vicinity of 100 kilometres per hour.  Any solid object falling from a vehicle moving at that speed becomes a projectile capable of inflicting enormous harm and damage to vehicles and persons using the roadway.  The risk that an object could become lodged in the bodywork of a commercial vehicle and then become dislodged during the journey causing danger is clearly foreseeable as a significant risk.  Having regard to the seriousness of the harm that could be suffered and the fact that the precautions necessary to avoid the harm are as simple as an inspection of the external bodywork of the vehicle, the failure to do so constitutes a breach of duty.
  2. [81]
    Mr Garside does not rely on the principles of res ipsa loquitur.[106]  On his behalf, it is submitted that an inference can be drawn that the object was either placed on the vehicle and not removed before the journey began or became accidentally lodged in the vehicle and was not detected before the journey began.  Of course, in order for Mr Garside to succeed he, bearing the onus of proof, must establish a positive inference that it is more likely than not that the pleaded breach of duty actually occurred.[107]
  3. [82]
    Although every case, of course, turns on its own peculiar facts, the courts in a number of cases have drawn the inference of negligent conduct where accidents have been caused as a result of foreign objects and substances being on the road.[108]
  4. [83]
    Here, the object has clearly fallen from the bodywork of the truck.  The object is a large object and even if “pocketed” in some part of the bodywork it must have been able to be seen on competent inspection.  I draw the inference then that the driver either knew that the object was on the bodywork (they having placed it there) or ought to have known but did not conduct an examination to detect it.  In either case there was then a failure to remove it.
  5. [84]
    I find that the injuries suffered by Mr Garside were caused by negligence of the driver of the green truck.

Quantum

  1. [85]
    As already observed, there was agreement on various heads of damage.  The sums agreed are:

General Damages

$25,200.00

Future gratuitous services/paid services

$35,000.00

Past special damages – monetary loss – medical, rehabilitation, pharmaceutical and travel expenses

$6,000.00

Future expenses

$16,000.00

Interest on special damages

$216.59

Total

$82,416.59

  1. [86]
    Mr Garside was born on 10 July 1983.  He was therefore 31 years of age at the time of the accident.
  2. [87]
    He completed tenth grade at high school in 1998 before enrolling the next year at Emerald Agricultural College where he then completed a Certificate IV in agriculture.
  3. [88]
    Mr Garside’s parents, Mr Allan Garside (Mr Garside Senior) and Mrs Heather Garside have for many years operated a mixed farming operation growing grains and raising cattle at properties they own at Capella.  It was one of those properties which was Mr Garside’s destination when he was injured in the accident.
  4. [89]
    After graduating from Agricultural College at the end of 2000, Mr Garside worked as a contract musterer and helped on the family farm until 2002.  He then worked as an exploration drill operator until 2004.  Between 2004 and 2006, he worked as a contract welder and helped out on the family farm.
  5. [90]
    In 2007, he commenced his apprenticeship as a boilermaker and qualified in his trade in 2009.
  6. [91]
    In 2010, Mr Garside established Garside Engineering.  That was a general engineering workshop where Mr Garside plied his trade.  Garside Engineering was operated by Mr Garside from “Lansdowne” which was one of the two family properties (the other being “Torindora”).
  7. [92]
    Dr Gillett examined Mr Garside on instructions from Mr Garside’s solicitors and Dr Halliday examined Mr Garside on instructions from QBE.  Both Dr Gillett and Dr Halliday are orthopaedic surgeons.  Dr Gillett was not called to give oral evidence.  Dr Halliday was called in order to give evidence of a conversation which he had with Mr Garside where Mr Garside said to the doctor, “The business [a reference to the engineering business] has tapered off.  There is not a lot of work around at the moment.”  Dr Halliday was cross-examined by Mr Green as to the effect of Mr Garside’s injuries on his capacity to work. 
  8. [93]
    Dr Gillett described the injuries as follows:

“The diagnosis is fracture of the patella with a reciprocal contusion injury to the medial femoral condyle associated with chondral loss requiring surgical treatment.

Measured impairment is made with reference to AMA 5 methodology.

He has pathology associated with an undisplaced healed fracture of the patella measured with reference to Table 17-33 is a 7% impairment of lower limb function.

The osteochondral injury involving the medial femoral condyle would be assessed by analogy with reference to Table 17-31 (patellofemoral joint arthritis) (Footnote)[109] as a 5% loss of lower limb function or by analogy to a supracondylar intercondylar fracture of the knee undisplaced with reference to Table 17-33 as a 5% impairment of lower limb function

That is the pathologies found within the knee of the patella fracture and the osteochondral lesion overall using combined value methodology would be assessable as a 12% impairment of lower limb function (7% combined with 5%).  This equates to a 5% loss of whole person function.

Scarring associated with his left knee is assessed as a 2% impairment of whole person function with reference to Table 8-2.”[110]

  1. [94]
    Dr Halliday held a similar view except he would assess a 6 per cent impairment of the whole person.[111]  Both doctors in their reports were of the view that Mr Garside’s injuries impaired him in the workplace, in particular with heavy lifting, squatting and kneeling.  Dr Gillett also opined that climbing work should not be done by Mr Garside.
  2. [95]
    Dr Halliday under cross-examination gave oral evidence of Mr Garside’s physical restrictions as:

“And in terms, specifically, of his employment, the restrictions that you understood to be affecting him were consistent with what he reported to you about the difficulties he was encountering in performing various duties?Yes.

 Doctor, you would accept, wouldn’t you, that – sorry.  You’re aware, Doctor, that Mr Garside ceased undertaking the engineering work and took up work as a farmhand?Yes.

You under – you accept, do you not, Doctor, that undertaking work as a farmhand with the sort of injury that he has presented with would give rise to a number of difficulties?Yes.

Can I suggest a number of examples that he will have difficulties with, Doctor.  And they would be, firstly, uneven ground would present problems for him?Yes, that’s in my report.

Yes.  Access on high equipment by way of ladders and steps would be a difficulty?Steps and ladders, by themselves, would not be a difficulty.  It’s more the flexion of the knee, so squatting and crouching.

If he was to require flexing and squatting or flexing the knee to access ladders and equipment, that would be a problem for him?He told me he could – he could go up and down stairs.

Did he say whether he did so without difficulty?No.

Doctor, you didn’t understand that he returned to his normal duties in the engineering business, did you?No, he told me he didn’t.

All right.  And you accepted that?Yes.

Do you – would you accept, Doctor, that he was unable to return to normal duties in farm work?Yes.

You’ve made a comment in your report, Doctor, at page 6, paragraph 11, under the heading of Work Effects, that if he was to return to engineering work he would do so as a supervisor, and he would require the assistance of others, particularly for certain activities there – that you’ve noted there, of regular squatting and heavy lifting?Yes.

And that was because of his knee injury?Yes.

In page 9 of your report, Doctor, you make comments under the heading of Restricted Work Capacity.  You’ve noted that he would be able to work within the restrictions.  Now, that is to be understood as a reference to the restrictions that you’ve noted elsewhere in your report?Yes.

I’d suggest to you, Doctor, that any circumstances on the farm where he was required to move quickly to get out of the way of a beast would cause difficulties for him?Yes.

Climbing up a yard rail very quickly to remove himself from a point of danger would be a difficulty for him?Yes.

Prolonged standing for the – in the course of mustering activities would be an issue for him?Yes.

Walking distances to retrieve mobs of cattle would be an issue for him?I – I mentioned that he has returned to some very short bushwalking, but mobs of cattle are a different issue.

And they would present some difficulties for him?Yes.

And if he was required to maintain certain postures in accessing pieces of equipment, that could present difficulties for him, as well, couldn’t it?I’m not sure what you mean by “certain postures”.

Example, if he was required to flex his knee to get up under a harvester comb or something like that, that would present difficulties for him?Yes.  A crouch position, yes.”[112]

  1. [96]
    After the accident, Mr Garside experienced difficulties in working in the engineering business.  The business was closed and on 1st July 2016 he acquired a one-third share in the family farming business.  That step was, in effect, an acceleration of a pre-existing plan held by the Garside family.  Before the accident, it was intended that Mr Garside would take control of the farm in 2020.  The post-accident arrangements were for Mr Garside to come into the farming business as a partner and then from 2020 to own the entire operation upon the retirement of his parents.  Mr Garside proposes to retire upon reaching the age of 67 in 2050.  In his quantum statement, Mr Garside said:

“I feel that I am unable to undertake the work involved in running the family agricultural operation.  The only option that I have considered is to employ someone to be available to perform the sorts of duties and activities that I am unable to do.  I have not been able to afford to pay for such labour to date and my father has been available to fill in those types of jobs.  I am concerned about the costs associated with bringing in additional labour because of the isolation of the farm, the need to ensure the safety of workers and the difficulties I expect to encounter in bringing someone in on a contract basis associated with the wages I would need to pay them.”[113]

  1. [97]
    Mr Garside Senior, Mrs Garside and Ms Scott all gave evidence relevant to quantum. 
  2. [98]
    Mr Garside Senior gave the following evidence about Mr Garside’s post-accident restrictions:

“Now, have you noticed any restrictions in the sorts of things Glenn does around the farm?

HIS HONOUR:   Since the accident?Well, he’s certainly not active as – physically, as far as helping with the cattle work.

MR GREEN:   Can you give us some examples?Well, you know, we – we brand cattle.  He’s very restricted – he helps, but he’s very restricted every time we’ve got to turn and move branding the cattle and marking the cattle, opening, closing gates, and so forth.  He’s restricted in his movement, as far as being a safe person in the yard, as far as agitated cattle, too.  Yeah.  It restricts him in the cattle work.  Farming wise, there’s certain machines he doesn’t like to operate, because it knocks him – legs about.  Example would be the bulldozer, where you’re using your steering brakes at all times.  We use a bulldozer for soil erosion and so forth, to maintain the property.  And, yeah, he might work on that, and then the next two days he mightn’t be – he might not come home to help us, because he’s incapacitated.

All right.  So apart from the bulldozer and the mustering or the yard work, is there anything else you’ve observed?Well, the fencing on the property has gone – has depreciated because of inactivity that we should maintain the fencing.  Also, driving the trucks, he has – it’s – yeah, especially in harvest time, to fill the road train and that and take it to town, climbing up and down the truck.  Yeah.

In respect of the fencing, is there any work that you’ve watched Glenn do with you doing the fencing?Yes.  Well, there was one occasion that we went – we had a section of fencing to do, and he was helping as much as he could, but as soon as we – he – he’d get a chance, he used to carry a chest – a plastic chair.  He used to sit in the chair to support himself.

Is that different to how he did fencing before the accident?He – he used to outlast me, that’s for sure.”[114]

And later:

“MR GREEN:   Mr Garside, apart from mustering, yeah, in terms of other activities on the farm, such as planting or harvesting the crops, have you observed Glenn have any difficulties with those sorts of activities?Yes.  He sometimes worked on the harvesting machine, and if there’s a mechanical breakdown, it’s very awkward for him to service the machine, keep it mechanically operating.  And if we have a blockage, yeah, it’s – it’s fairly awkward for him to get the machine going.

Have, in the past, you engaged people to come and work on the farm?In the past where – in the past, I used to have exchange students.  They’re all very well to have, try and help out, but sometimes it’s – it’s at a considerable cost, because of the – their mechanical knowledge is not current for the modern machinery, and – yeah.  We’ve had some very expensive failures with machinery.”[115]

And later:

“Mr Garside, in terms of the restrictions you’ve observed with Glenn being involved in the farming operations, and assuming that you weren’t continuing, how would he meet those problems and restrictions?Well, the farming operation’s a fairly large operation, and he’d have to have access to hired help to – to get the benefit and the – keep the farm running as an asset.

And are you aware of any difficulties that might be associated with having access to hired help?To get the proper hired help is a – is hard to come by these days.  Yeah.  It’s – it’s very hard.

And do you know how much hired help he would need?On – on occasions, you’d probably employ two people to do the – some of the jobs that would need to be done at times.

Would that be on a full-time basis?They’d have to be on a full-time basis, on a week-by-week operation.

When you say week-by-week, do you mean for the whole year, or do you mean shorter term contracts?Well, it’d probably be good if we had one permanent employee.

Why is that?Because I’m sort of backing out and – with me shoulder and that.  He’s got to have access to labour to help him on the farm.

And why is someone on the farm a better option?Yeah, well, you’ve just got to have help – labour to assist in running a farm, yeah.”[116]

  1. [99]
    Under cross-examination, Mr Garside Senior conceded that additional help was needed on the farm regardless of any work done or not done, as the case may be, by Mr Garside.[117]
  2. [100]
    Mrs Garside gave evidence as follows:

“Right.  In terms of Glenn’s involvement in the farm have you noticed any restrictions after the accident compared to what he did before?Yes, definitely.  He can’t do the physical work that he used to be able to do.

 Can you think of firstly mustering.  Can you give some examples or some instances of things that you’ve observed of Glenn after the accident in relation to those sorts of restrictions?Yes.  When we’re drafting cattle he’s not agile on his feet.  He can’t jump up the rails to get out of the way if a beast charges him.  He can’t work the branding cradle and do heavy jobs like that because it’s too hard on his knee.  There’s lots of heavy work that he can’t do.

In terms of the cropping, is there anything that you’ve noticed about restrictions for Glenn in terms of what he did – he does now as opposed to what he did before?There’s a lot of heavy work, you know, with machinery if something breaks.  So obviously that’s very difficult for him.  You know, he has to sit on a chair and do jobs when he’s trying to repair things rather than crouch on – you know, or squat as he probably would have done before.  Just different things like that.

In terms of mobility over rough or uneven ground have you noticed any differences after the accident from before?Yes.  Yeah, definitely.  Like, in a – if a vehicle’s travelling fast over rough ground it’s very rough and would hurt his knee, so he would have to go slower.

What about walking?And walking, yes.  You know, it’s hard for him to walk and he can’t run at all, so   [118]

  1. [101]
    Ms Scott gave evidence:

“Okay.  And how have you – have you seen Glenn work the farm or the farming operations since the accident?Have I seen him?

Yes?Yeah, I have.  The farm’s been a great distraction for him mentally.  Obviously, it’s what he’s done his whole life, and it’s what he enjoys doing.  He works hard, but I see the result of that.  He come home of a night-time, and he – he’s essentially dragging his leg up the driveway, and, you know, he’s in pain, and he goes straight – goes straight for a shower – straight to bed.”[119]

And later:

“And, when Glenn’s working out at the farm when you’re there, he doesn’t shirk from carrying out the farm duties, does he?I take on as much responsibility as I can, within my physical capabilities.  So, for example, if we’re fencing, instead of him running back and forwards to the ute to get out heavy barb – barb – you know, rolls of barbed wire and – and tools and tensions and stuff, that’s my job.  Their terrain is uneven.  It’s easier for me to pick up the posts and sink the posts in the ground.  Anything to stop him from having to move back and forwards between, you know, the ute and fence and – and stuff like that.

All right.  But he does the fencing work himself, which is the physical aspects of fencing?We all do.  Yep.

And he will work the cattle when they’re in the cattle crush?  He does that?He will stand there, and, for example, he may spray the cattle.  But I will run from each end of the race – oh, sorry – I will run each end of the race to chase cattle through – operate the head bale.  I will set up the dips for him, set up the ear tags for him, and, if he’s – you know, he might just stand there and tag the beast, and I do the back and forwards, setting up all the guns and stuff like that.

Or he’ll dehorn the beast, as long as he’s able to get access to it?Yes.  Yes and no.  It depends how far into the day we are and – and how’s he feeling.

And, in any event, with respect to other aspects of the farm work, he rides on the quad bike and does mustering?Yes.

All right.  And with respect to working when you’re out at the farm, he attends to maintenance of the farm machinery?Yes.

You don’t help with that?I do, yep.

What do you help with that?If he’s – for example, if he’s, I don’t know, checking the oil or something and he needs a tool and it’s in the other shed, he’ll ask me to go and get it.  Saves him, you know, walking across the paddock to the other shed or if he needs parts  picked up in town for maintenance, you know, I’ll run in and grab it instead.  Anything to reduce – anything to make his life easier.

I accept that, but with respect to, say, for the running into town, he is able to drive his car and does in fact drive into town, doesn’t he?Yep.

He – after about six weeks or so after the accident he was back at work, wasn’t he?No, no, I wouldn’t call it back at work.  I don’t recall exactly.  Like, that was four years ago, but I do remember him attempting to drive a vehicle out to the farm and it was too hard.

When was that?That was well after the six weeks.

If we concentrate, say, this year, he’s been driving the vehicle out to the farm, hasn’t he   ?Correct.

   on his own?Yep.

Does he drive a motorcycle still?Not very often.  Very rarely.

What vehicle does he drive?A Toyota Hilux.

And you’ve been in the vehicle with him when he drives   ?Correct, yep.

   the Hilux?Mmm.

And is that between both the – of the two farms?  Lansdowne?And [indistinct].

And [indistinct]  And the work that you’re talking about previously – is that done over both properties or is it only done on one?The mustering and all that sort of stuff?

Yes?Both.”[120]

  1. [102]
    The relevant periods over which the economic loss must be considered are:
  1. (i)
    26 November 2014 to 30 June 2015 (which includes the period 26 November 2014 to 6 January 2015, when Mr Garside was completely incapacitated);
  2. (ii)
    1 July 2015 to 30 June 2016 (the period up to Mr Garside going into partnership with his parents);
  3. (iii)
    1 July 2016 to 2020 (the period of Mr Garside’s one-third partnership with his parents); and
  4. (iv)
    2020 to 2050 (the period from taking over the farm to retirement).
  1. [103]
    Expert accountants were called: Mr Michael Lee for Mr Garside and Mr Stuart Benjamin for the defendants.

26 November 2014 to 30 June 2015

  1. [104]
    Mr Lee’s opinions would lead to an assessment of loss over this period at $19,267.00 as follows:
  1. (i)
    26 November 2014 to 6 January 2015:      $5,150.00
  1. (ii)
    7 January 2015 to 30 June 2015:       $14,117.00

Total:            $19,267.00

  1. [105]
    The figure of $5,150 is calculated by Mr Lee accepting that Mr Garside was not working for a period of six weeks after the accident and then applying a commercial rate for that period of absence based on rates paid for metal fabricators provided through documents published by Jobs Markets Australia. 
  2. [106]
    The figure of $14,117 is based on a formula devised by Mr Lee, but he did not opine that the loss was $14,117.  Mr Lee was initially unable to set a figure for this period because he could not ascertain what level of replacement labour was required.  He did various calculations based on different replacement labour requirements leaving the Court to assess what level of replacement labour was needed.  On his formulations, if Mr Garside needed 25 hours per week replacement labour then the total loss is $14,117.  Mr Garside in his quantum statement said that he needed 25 hours per week assistance.
  3. [107]
    Mr Benjamin approached the calculation completely differently.  He based his calculations on an analysis of what wages were actually paid over that period rather than notionally what the replacement cost would be.  He identified an increase in wages paid to Mr Baker, who worked in Mr Garside’s engineering business, which occurred post-accident.  However, it seems that the increase in wages paid to Mr Baker was because he had become a third-year apprentice (and therefore entitled to be paid more) rather than because he was doing any extra work.[121]  Therefore, Mr Benjamin opined that there was no loss over the initial six weeks after the accident.
  4. [108]
    Mr Benjamin’s opinion ought to be rejected.  There is no doubt that Mr Garside was working in the business before the accident and the business was profitable.  There is no doubt that Mr Garside’s labour generated income for the business.  Mr Garside’s absence for the six-week period after the accident must have generated a loss of income.  I infer that if Mr Garside had been working over that period he would have generated income at least in an amount equivalent to that which would’ve been paid to a metal fabricator had one been employed.  Therefore, for the period of 26 November 2014 to 6 January 2015, I accept Mr Lee’s opinion and assess loss at $5,150.
  5. [109]
    In relation to the period from the initial six weeks up to 30 June 2015, Mr Benjamin points to the employment of Mr Lonergan.  It seems fairly clear that Mr Lonergan was employed in order to help with the business given Mr Garside’s partial incapacity.  I accept that the payments to him are a cost directly to the business as a result of the injuries sustained in the accident.  I accept Mr Benjamin’s opinion that it is appropriate to look at the actual loss incurred rather than attempt some analysis pursuant to commercial rates.  When Mr Lonergan’s cost is isolated from Mr Benjamin’s broader calculations,[122] it becomes:

Payments to Mr Lonergan       $5,442.50

Plus on-costs (12%)        $   653.10

Subtotal: Loss before tax       $6,095.60

Less tax (35%)         $2,133.46

Total: Loss         $3,962.14

  1. [110]
    The total over the period of 26 November 2014 to 30 June 2015 is $9,112.14, being:
  1. (i)
    for 26 November 2014 to 6 January 2014:       $5,150.00
  1. (ii)
    for 7 January 2015 to 30 June 2015:      $3,962.14

Total            $9,112.14

1 July 2015 to 30 June 2016

  1. [111]
    Mr Lee assessed the notional profit for the engineering business period over this period by adopting as his starting point the gross profit ending 30 June 2015.  That was a figure of $121,409.00 which he then rounded up to $130,000 for the purposes of his calculation.  His calculation of a loss after tax of $55,428.00 was achieved as follows:

 

1-Jul-15 to 30-Jun-16

Annual notional gross profit

130,000

Number of weeks per year

52.2

Weekly notional gross profit

2,490

Number of weeks in period

52.2

Notional gross profit

130,000

Less: Actual gross profit

(50,473)

Reduction in gross profit

79,527

Less: Tax payable

(24,099)

Losses (after tax)

$55,428

  1. [112]
    The gross profit for years ending 2011, 2012, 2013, 2014, 2015 and 2016 was as follows:[123]

Year Ended

Gross Profit

30 June 2011

$24,755

30 June 2012

$89,224

30 June 2013

$105,516

30 June 2014

$70,382

30 June 2015

$121,409

30 June 2016

$50,473

  1. [113]
    In explaining his approach, Mr Lee noted the following:

“I refer to Table 5 above and note the following:

  1. (i)
    The gross profit and gross profit margin have been determined at Schedule A to my report. I note that the gross profit has been calculated based on the following:

 Less: Gross Income

 Less: Direct Costs (i.e. materials and supplies, fuel, etc.)

 Less:  External Labour

  1. (ii)
    As previously mentioned, given that the business commenced in 2010, the trading results for the year ended 30 June 2011 is not likely to be representative of the business operating at full capacity. That is, the business would have been in a growth rate;
  1. (iii)
    During the year ended 30 June 2015 the gross profit of the business increased. I refer to paragraph 4.4(iii)(c) and note that during the year ended 30 June 2015, the business commenced undertaking work for the mining industry which I am instructed was more lucrative; and
  1. (iv)
    The gross profit of the business during the year ended 30 June 2016 (i.e. the year subsequent to the accident) decreased when compared to the year ended 30 June 2015. As previously mentioned, the business was impacted by the matters raised at paragraph 4.5(iii) to my report.”[124]
  1. [114]
    Mr Benjamin would have adopted a gross profit figure of $100,000.  That produces a loss after tax of approximately $30,000.  Mr Benjamin pointed to the fact that a field bin was sold in the year ended 30 June 2015 to the agricultural partnership then constituted by Mr and Mrs Garside.  That field bin sale represented most of the increase in gross profit in 2015 over 2014.  Mr Benjamin also attempted to convert the trading figures from a cash basis to an accrual basis to take into account what he saw to be an anomaly primarily with stock purchases.  It is unnecessary to analyse this.
  2. [115]
    Importantly, once it is understood that the field bin contributed significantly to the increase in gross profit of the year 2015 over the year 2014, one of Mr Lee’s underlying assumptions becomes wrong; that in the year ended 20 June 2015 there was an increase in profitability because the business started to perform lucrative mining work.  Of course, the field bin was not mining work.
  3. [116]
    The $100,000 notional gross profit that is the subject of Mr Benjamin’s calculations is then an averaging of the gross profit for the years 2013, 2014 and 2015.  Mr Lee agrees with that calculation on the assumptions adopted by Mr Benjamin.[125] 
  4. [117]
    Mr Benjamin, adopting that notional gross profit of $100,000 calculates the loss as follows:

Notional gross profit

100,000

Less Actual

(50,473)

Reduction in GP

49,527

Less Tax Payable

19,315.

Loss after Tax

30,212[126]

  1. [118]
    Mr Benjamin’s approach is the preferable one.  There was a marked increase in revenue in 2015.  There is little, if any, evidence to suggest that the increase is explained by a change in the business to an emphasis upon mining work.  It is reasonable to assume that had the business continued unaffected by Mr Garside’s injuries then profitability would have been achieved at about an average of the 2013, 2014 and 2015 years. 
  2. [119]
    I therefore find that the loss over this period was $30,000, which I have rounded from Mr Benjamin’s figures.

1 July 2016 to 2020

  1. [120]
    The defendants submit that Mr Garside has failed to prove any reliable basis for an assessment of loss, although do accept that some assessment should be made.[127]  The defendants point to shortcomings in Mr Garside’s case on future loss (in particular).  They submit:

“33. What should have happened is the Plaintiff should have said (for example)

  1. (a)
    We harvest once a year and it takes 2 weeks; I will need to engage assistance for that 2 weeks;
  1. (b)
    In addition with mustering we muster X times a year; some are small musters but for the larger ones I will need to engage someone for a week;
  1. (c)
    In addition we need a fencer for a couple of weeks”[128]
  1. [121]
    The defendants say that it is obvious that the family partnership employed outside labour.  That can be accepted.  The defendants then submit that “…the Court is left to do the best it can to assess the level of assistance above that which would have been required anyhow.”[129]  That can be accepted, as far as it goes.  However, whatever the total labour force of the farm is, or will be, it included Mr Garside.  Because of his injuries, Mr Garside has a limited capacity to contribute to that labour force. 
  2. [122]
    Over this period from the closure of the engineering business to the time Mr Garside takes over sole control of the family farming business, Mr Garside will be a one-third partner in the agricultural business.  The parties have approached the assessment of the economic loss on the basis of a calculation of replacement labour to compensate for the physical shortcomings that Mr Garside now experiences.  The replacement labour cost is then said to be Mr Garside’s loss.
  3. [123]
    Such an approach is fundamentally flawed because it fails to take into account the basis upon which a partner receives income by virtue of their status as a partner in an enterprise.
  4. [124]
    In the Commissioner of Taxation v Everett,[130] the High Court considered the income tax ramifications of what was clearly an income splitting device deployed by a solicitor.  The solicitor was a partner in a Sydney firm.  He assigned to his wife six-thirteenths of his share in the partnership.  His argument then was that the income from six-thirteenths of his partnership interest fell to his wife and was assessable in her hands.  The income from the remaining seven-thirteenths share of his partnership interest fell to him.  The Commissioner assessed the solicitor for the entire amount of the income which flowed from the partnership interest.
  5. [125]
    The Commissioner failed.  In the course of the joint majority judgment,[131] the High Court analysed the legal effect of an equitable assignment of a partnership interest.  That is not relevant here.  However, the High Court held that the income of the solicitor was not generated by his personal exertion namely, performing legal work in the partnership.  The income was generated from his ownership of a partnership interest.  He could assign a part of the partnership interest and the income then fell to the solicitor’s wife as being the owner of that interest.
  6. [126]
    Therefore, if one is measuring loss of income the proper measure of loss here is not the replacement cost of labour but rather, the diminution in the income generated by Mr Garside’s one-third interest in the agricultural business as a result of his injuries.  
  7. [127]
    Prior to the accident, Mr Garside was performing substantial work for the partnership then consisting of his mother and father.  Since the accident, his partner, Ms Scott has been performing significant work on the farm.  That informs me at least to some extent of the fact that his labour would substantially add to the overall work done and therefore generate income for the partnership.
  8. [128]
    As already observed, the accounting evidence has not really grappled with the real issues.  Given the serious nature of the injuries and the fact that Mr Garside would otherwise be a fit, healthy man in his early thirties, experienced and skilled, it is easy to conclude that Mr Garside would have increased the partnership income by $75,000 per year, being the future cost of a farm hand (as I find when considering the next head of damage).  His loss is therefore $25,000 per year before tax.  After tax that equates to $16,250 per year, which, over the four years to 30 June 2020 is $65,000, being two and a-half years of past loss and one and a-half years of future loss.

2020 to 2050

  1. [129]
    In the period after 2020, Mr Garside will be the sole operator of the agricultural business.  It was always intended that he take over the family farm from that point.  Although he was to be a farmer from 2020, but for the accident, he would still have had his trade and that would insulate him against any contingencies in the agricultural business.
  2. [130]
    The appropriate way to assess loss of future income over this period is to assess replacement labour cost.
  3. [131]
    Mr Lee initially adopted a salary of $50,000 per annum and then later also undertook calculations with an alternative salary of $75,000 per annum for a farm hand.  Mr Lee assessed loss on the basis that a full-time farm hand would be required to replace Mr Garside’s lost capacities.
  4. [132]
    Mr Benjamin was prepared to adopt an hourly rate consistently with $50,000 per annum but thought that only five hours per week was necessary.  He based that upon an inference to be drawn from the fact there was arguably an increase in work hours by Mr Baker of five hours per week in the engineering business.  Mr Benjamin said that the $75,000 per annum salary for a farmhand was not justified.
  5. [133]
    The $50,000 figure initially adopted by Mr Lee appears to be an approximate average calculated by reference to the Job Markets Salary Survey and the Farmstaff Salary Survey, which respectively provide the figures of $48,525 for “Mixed Crop and Livestock Farm Workers”, and $39,087 for “Stationhand” and $55,504 for “Senior Stationhand”.[132]
  6. [134]
    In Mr Lee’s supplementary report,[133] he referred to job advertisements from Indeed and Adzuna,[134] which detail salary ranges for farmhands of $60,000 to $85,000 and $55,000 to $90,000 respectively, and an extract from Indeed which cites the average earnings for farmhands as $64,099 per year.[135]  In response to criticisms in Mr Benjamin’s report, in his second supplementary report,[136] Mr Lee referred to Australian Tax Office statistics from 2014.[137]  An average of 40 individual “Mixed Crop and Livestock Farm Worker” salaries calculates to $73,381, which Mr Lee says is equivalent to $87,000 per annum at 2018 values.[138] 
  7. [135]
    I accept that the cost of a full-time farmhand will substantially exceed $50,000 per annum.  It is appropriate to adopt a figure of $75,000 per annum.  That equates to $36 per hour.
  8. [136]
    Mr Garside submits that a full-time farmhand is necessary given his disabilities and also submits that it might be difficult to employ a part-time worker to replace his labour.
  9. [137]
    The first submission should be rejected.  Mr Garside retains some capacity for performing farm work.  That is borne out by the evidence of Ms Scott, Mr Garside Senior and Mrs Garside.  That evidence is consistent with the medical evidence.  The injuries, therefore, do not result in a total loss of Mr Garside from the farm workforce and a full-time replacement for him is not justified.
  10. [138]
    I reject the second submission.  Any employee employed to compensate for Mr Garside’s disabilities will, like Mr Garside, form part of the overall labour force for the farm.  If a full-time farmhand is employed, then no doubt that will not only compensate for Mr Garside’s reduced capacity, but will reduce the level of other labour (part-time, for instance) required.  In that way, a full-time employee will fill the gap left by Mr Garside’s incapacities, but the increase in overall labour costs will reflect the fact that Mr Garside can still do some farm work.
  11. [139]
    Mr Garside’s incapacities are, as I have already found, substantial.  I find that he will require replacement labour at a rate of 20 hours per week; that is half of a standard working week.
  12. [140]
    A rate of $36 per hour at 20 hours per week gives $720 per week.  Applying the 5 per cent discount tables, that delivers[139] a total of $591,840. 
  13. [141]
    The period over which future loss is calculated is long.  Usually, a significant discount for contingencies is required.  However, Mr Garside has largely lost his trade.  True, he can still operate an engineering business, but the profitability of that is diminished greatly by his incapacities and he is now left to the vagaries of agriculture.  This diminishes the appropriate discount.  I allow 10 per cent.
  14. [142]
    The calculated future loss for the period of 2020 to 2050, then, is:
  1. (i)
    replacement labour         $591,840.00
  2. (ii)
    less 10 per cent          $  59,184.00

Total            $532,656.00

Interest

  1. [143]
    Interest is payable on past economic loss.[140]  Past economic loss here is:
  1. (i)
    Loss for the period 26 November 2014 to 30 June 2015  $    9,112.14
  2. (ii)
    Loss for the period 1 July 2015 to 30 June 2016   $  30,000.00
  3. (iii)
    Two and a-half of four years from 1 July 2016 to 30 June 2020 $  40,625.00

Total: past economic loss        $  79,737.14

  1. [144]
    Adopting an interest rate of 2.87 per cent and the formula in the note to s 60(3) of the Civil Liability Act, the interest over a period of four years is $4576.91.

Conclusions on quantum

  1. [145]
    I assess damages as:
  1. (i)
    The agreed amounts[141]        $  82,416.59
  2. (ii)
    Loss over period 26 November 2014 to 30 June 2015  $    9,112.14
  3. (iii)
    Loss over period 1 July 2015 to 30 June 2016    $  30,000.00
  4. (iv)
    Loss over period 1 July 2016 to 2020      $  65,000.00
  5. (v)
    Loss over period 2020 to 2050       $532,656.00
  6. (vi)
    Interest on past economic loss       $    4,576.91

Total            $723,761.64

Reasons for the two rulings

  1. [146]
    As observed earlier, in the course of the trial, I made two rulings in relation to evidence and reserved reasons for those rulings.  Those reasons are as follows.

The exclusion of the evidence of Dr Gilmore

  1. [147]
    Dr Gilmore is a mechanical engineer.  He is clearly qualified in that field.
  2. [148]
    In his report, Dr Gilmore reported Mr Garside’s description of the object which fell from the truck and hit him.  He then assumed that the object was in fact a piece of concrete the size of “half a house brick” and concluded that it would weigh 2.3 kilograms. 
  3. [149]
    He then identified the two routes which a truck could have taken from the JJ Richards depot at Emerald to the entry of the Gregory Highway. 
  4. [150]
    He observed that in relation to the first route there was a total of seven turns which a truck would have to negotiate and features of the route included highway undulations “left/right roll” and “bridge crossings”.  Other factors included vibrations and wind.  He assumed that the vehicle would travel at approximately 90 kilometres per hour for at least part of the journey to the accident site.
  5. [151]
    The second route, Dr Gilmore observed, contains eight turns and the same characteristics as route 1, “left/right roll” and “bridge crossings”.  Again, he assumed the vehicle to be travelling at approximately 90 kilometres per hour.
  6. [152]
    Dr Gilmore then analysed the various forces at play on the object if it was somewhere on the truck as it was being driven from the depot to the accident site.  Dr Gilmore’s conclusion is as follows:

“In my opinion, a “half house brick” sized piece of concrete which rested on a flat surface of a JJ Richards truck as it left the Emerald Depot at Richards Court, Emerald, and travelled North on the Gregory Highway towards Capella, would have been dropped from the truck quite quickly as it traversed one of the many 20 to 40km/h corners whilst making its way to the Gregory highway in the first 1km. If not lost at that stage, a further 11 to 13 km or road vibration, undulations, slopes, aerodynamic drag and vehicle acceleration would have combined to shift a free standing object from the truck well prior to the site where Mr Garside was claimed to be injured.”[142]

  1. [153]
    The forensic purpose of the report is, of course, to lead the Court to the conclusion that it is unlikely that the object could have remained on the truck during the journey from the JJ Richards depot to the accident site; therefore making it unlikely that the truck involved in the accident which injured Mr Garside commenced its journey at the JJ Richards depot; therefore making it unlikely that the truck was a JJ Richards truck.
  2. [154]
    Mr Grant Taylor QC took objection to the admission of the report on three bases:
  1. (i)
    the report was delivered beyond the time limited by r 429 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR);
  1. (ii)
    the report was obtained in breach of paragraph 4 of Practice Direction 2 of 2005; and
  2. (iii)
    the opinion evidence is inadmissible in any event, as the underlying factual basis of the opinion is not proven.
  1. [155]
    Rule 423 expresses the purposes of Part 5 of Chapter 11 of the UCPR in which rule 429 can be found.  Rules 423 and 429 are as follows:

423 Purposes of pt 5  

The main purposes of this part are to—

  1. (a)
    declare the duty of an expert witness in relation to the court and the parties; and
  1. (b)
    ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and
  1. (c)
    avoid unnecessary costs associated with the parties retaining different experts; and
  1. (d)
    allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.

429 Disclosure of report

A party intending to rely on a report must, unless the court otherwise orders, disclose the report—

  1. (a)
    if the party is a plaintiff—within 90 days after the close of pleading; or
  1. (b)
    if the party is a defendant—within 120 days after the close of pleading; or
  1. (c)
    if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party.”
  1. [156]
    The pleadings closed on about 3 November 2017.  The report should have been delivered within 120 days and was not delivered until 21 May 2018.  There has been a clear breach of the rule.
  2. [157]
    Part 5 of Chapter 11 seeks to ensure an orderly and efficient presentation of expert evidence.[143]  Sofronoff P in Allianz Australia Insurance Ltd v Mashaghati,[144] explained the considerations relevant to the exercise of discretion to allow expert evidence to be lead withstanding the failure to comply with r 429 in these terms:

[54] It can be seen that these rules, in combination, are directed towards early and full disclosure of expert evidence in order to assist in achieving either an early settlement of the claim that is the subject of the proceedings or, if that cannot be done, then an efficient trial in which the parties and the Court can concentrate upon the essential issues only.

[55] Tactical surprise is thus avoided. On the other hand, relevant expert evidence which has not been dealt with in accordance with the rules may still be admitted in evidence if the interests of justice in ensuring a fair trial require it. The power of the Court to grant leave to a party to tender a non-compliant report or to permit oral evidence to be given by an expert is unfettered by any express provision of the rules. However, the discretion is informed by the purpose of the rules set out in r 5, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The discretion is also informed by r 5(2) which obliges the Court to apply the rules with the objective of avoiding undue delay, expense and technicality.

[56] Of course, these express provisions which guide the Court in the exercise of discretion are subject to the overarching obligation of the Court to ensure that a trial is fair.”

  1. [158]
    Here, there is no suggestion:
  1. (i)
    that the defendant could not meet the evidence of Dr Gilmore.  The report of Mr Stuart Boyd of Intersafe was prepared on Mr Garside’s behalf and delivered;
  1. (ii)
    that the experts could not properly be prepared to give evidence; or
  2. (iii)
    that the trial would be delayed in any way as a result of the expert evidence being introduced.
  1. [159]
    In those circumstances, I would, had the evidence been otherwise admissible, been reluctant to exclude Dr Gilmore’s evidence solely on the basis on non-compliance with rule 429.
  2. [160]
    Practice Direction 2 of 2005 provides, by paragraph 4:

“Either before commencement of any such proceeding, or soon afterwards, a party intending to call expert evidence on a substantial issue should raise with all other parties the prospect of their jointly appointing an expert, who would become the only expert to give evidence on that issue (unless the court otherwise ordered) (rr 429G(1), 429H(6)).”

  1. [161]
    On 27 April 2018, Barry Nilsson, the solicitors for QBE wrote to Grant & Simpson Lawyers, the solicitors for Mr Garside advising:

“We enclose by way of return the unsigned request for trial date. The original document has been forwarded to you via post.

We are currently not in a position to sign the request for trial date. We have engaged an engineer to provide a report, and are currently waiting for it to be completed. It should be completed and served within a few weeks.”

  1. [162]
    Grant & Simpson Lawyers responded initially via email objecting to the report on the basis of a failure to comply with Part 5 of Chapter 11 of the UCPR and with the Practice Direction.  Then on 30 August 2018, Grant and Simpson sent a letter which included this:

“I refer to your letter of the 27th April 2018 and my email of 14th May 2018 and note for the record that I’ve never received any response from you about my invitation to discuss my client’s objection to the report of your expert engineer.”

  1. [163]
    The point taken by Mr Garside is that Dr Gilmore’s report was delivered and Mr Garside’s solicitors objected, but there was then no discussion about the proposed evidence and no discussion therefore about the prospect of a joint engineer’s report being commissioned.  QBE’s solicitors simply proceeded to obtain Dr Gilmore’s report.  That is a clear breach of the Practice Direction.
  2. [164]
    However, had Dr Gilmore’s evidence been admissible in QBE’s case, I would have been loath to exclude the evidence because of a breach of the Practice Direction.  The breach would though have become relevant to the question of costs. 
  3. [165]
    In the course of argument on the admissibility of Dr Gilmore’s report, this exchange occurred:

“HIS HONOUR:   Now, you don’t have the object.

MR MORTON:   No, your Honour.

HIS HONOUR:   You don’t know what it is.

MR MORTON:   No, your Honour.

HIS HONOUR:   You don’t know what it weights.

MR MORTON:   No.

HIS HONOUR:   You don’t know what it was sitting on.

MR MORTON:   No.”[145]

  1. [166]
    Dr Gilmore in his report said this:

“The ability of a half house brick sized piece of concrete to rest and remain on a truck surface whilst the truck travelled from Richards Court, Emerald, to the site where Mr Garside was injured, depends on whether the forces to which the concrete would be expected to be exposed on the route, are sufficient to dislodge such an object from the truck surface.

My assessment cannot analyse the ability of an object to be retained within a “pocketed” region on the truck where it was tightly constrained, when for an undetermined reason, it was able free itself from that pocket on the truck and fall and bounce twice before striking Mr Garside on the right knee. I note however, that had the object been “pocketed”, there would be no apparent reason or explanation as to why such an object which had been “retained” on the vehicle despite the diversity of forces acting upon it up to this point (as reviewed in Section 8 of this report), should suddenly dislodge whilst the vehicle being driven in a straight line on a level road (straight and level enough for Mr Garside to consider overtaking).”[146]

  1. [167]
    None of the assumptions made by Dr Gilmore as to the composition of the object or its weight are proven.  Consequently, all his various calculations become irrelevant.  What has to be assessed is whether it is likely that an object of the description given by Mr Garside (with all its vagueness) was likely to have remained on the truck (and perhaps in some pocketed area) during the journey from the JJ Richards depot to the accident site.  The Court is in as good of a position as Dr Gilmore to assess that.  It is often the case when traffic accidents are litigated the variables are such that expert opinion cannot be said to be properly factually based[147].  This is such a case.
  2. [168]
    For those reasons, I excluded the evidence.

Tender of Mr Garside’s statement

  1. [169]
    Mr Morton, for QBE, cross-examined Mr Garside about oral statements he, Mr Garside, had made to Mr Fisher[148] and to Constable Galea.  This exchange then occurred:

“MR MORTON:   Thank you, your Honour.  Have a look at this one, please.  Actually, I might not be that long, your Honour.  Sorry, Madam Bailiff.  Take your time and have a look at this.  This was a statement that you gave in March of 2015, I would suggest.  Take your time and have a look, Mr Garside?Yes. 

 I don’t need you to read it all through but if you wish to please do so?Yeah, I’m [indistinct]

Can you turn, for me please, to page 2 at paragraph 17?Yes.

Now, this was a statement taken from you by an investigator;  is that right?That’s right.

Engaged – do you know who they were engaged by?I believe they were engaged by the Nominal Defendant. 

Yes.  And so you knew you had to carefully set out what had happened?I knew I had to describe accurately what had happened.

Yes.  And if you go to page – paragraph 17 for me, please.  See what you’ve got there:

As I was on the centre line and shortly before I commenced to overtake   

See that?Yes.

   I recall first seeing an object mid-air about one metre behind and off from the driver’s side of the rear of the vehicle   

You see that?Yes.

That was what you saw, wasn’t it?That’s right.

And you go on:

   at approximately 800 millimetres from the ground. 

You see that?Yes.

So that was what you saw, wasn’t it? I saw the object immediately behind the vehicle in a falling motion.”[149]

  1. [170]
    Some suggestions were put to Mr Garside by Mr Morton and then I asked whether any party required Mr Morton to tender the document.  Mr Grant Taylor QC did not.  Mr Diehm QC did. 
  2. [171]
    I ruled that the document ought to be tendered and Mr Morton did so.
  3. [172]
    The way in which counsel may or may not cross-examine a witness about a prior statement that a witness has made, and the consequences of such cross-examination has been the subject of much debate.[150]  The history of the debate starts with The Queen’s Case,[151] where it was held that a witness could not be cross-examined about the contents of a document unless the document was shown to the witness and was then tendered in evidence in the cross-examiner’s case.  There are, of course, forensic disadvantages in pursuing such a course. 
  4. [173]
    The Queen’s Case was modified statutorily and in Queensland there is now s 19 of the Evidence Act 1977 (Qld).  That provides as follows:

19 Witness may be cross-examined as to written statement without being shown it

  1. (1)
    A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness.

(1A)  However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness.

  1. (2)
    A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection(1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit.”
  1. [174]
    If the procedure in s 19 is followed and the witness does not admit the statement, then it can be proved, and under s 101 it becomes evidence of the facts therein stated.  The operation of these provisions was recently reviewed by Burns J sitting in the Court of Appeal in R v Collins.[152]  The Court of Appeal’s decision in R v Collins was overturned by the High Court and a retrial was ordered.[153]  However, the High Court’s decision concerned the application of the proviso.[154]  The High Court agreed with the Court of Appeal’s analysis of the Evidence Act provisions.
  2. [175]
    Mr Morton did not avail himself of the provisions of s 19(1).  He could have done so by simply asking Mr Garside whether on a previous occasion he had said the things that Mr Morton wished to prove from the prior statement.  If Mr Garside admitted that, then that would be the end of the problem.  If Mr Garside denied having previously stated the things in the relevant passage of the statement, then Mr Morton could have handed him the document, without asking him to identify it but asking him to read it to himself and then asking him whether he still adhered to his evidence.  Had Mr Garside admitted having made a statement consistently with the relevant passage, there would have been no need for Mr Morton to tender the document.  Indeed, the document would not have been admissible because the prior statement was admitted.[155]  If, after being shown the document, Mr Garside adhered to his evidence that he had never made a statement consistently with the relevant passage, then Mr Morton could either abandon the point or he could proceed to follow s 101 of the Evidence Act and prove and tender the document in his case.[156]
  3. [176]
    What Mr Morton did, though, was to show Mr Garside the document, have him identify it, draw his attention to the relevant passage and then read the contents of the passage to Mr Garside.  In that way, Mr Morton proved the document and introduced the document into evidence.  If no party took the point then he did not need to tender the document.  Mr Diehm QC did take the point and I ruled that Mr Morton was required to tender the statement.
  4. [177]
    In resisting the tender, Mr Morton relied on Lee v Chai.[157]  There, a party called a witness.  The other party cross-examined the witness on an affidavit which was identified.  Counsel who called the witness then, in re-examination, sought to tender the affidavit.  In ruling that counsel who called the witness could only tender those parts of the statement that were the subject of cross-examination, the learned judge said:

[98] In support of the tender, reference was made to a passage from a text on evidence, which deals with s 19 of the Evidence Act 1977 (Qld); and to a number of cases.

[99]  Section 19 is the current Queensland provision which modifies the operation of the rule in Queen’s Case. That case is usually accepted as authority for the proposition that a witness can not be cross-examined about the contents of a document unless the document is both shown to the witness, and put in evidence by the cross-examiner as part of the cross-examiner’s casehttps://www.queenslandjudgments.com.au/case/id/80668 - _ftn106. Section 19 provides that a witness may be cross-examined as to a previous statement made in writing by the witness, without the witness being shown the writing. Such cross-examination does not have the consequence that the cross-examiner must tender the document. However, the document may be tendered in re-examination.

[100] One of the cases relied upon in support of the tender is Meredith v Innes. A deposition had been taken from a person who had been seriously injured in a motor vehicle collision. Subsequently that person sued the owner of a motor vehicle involved in the collision for damages. He was cross-examined about some of the statements made to the magistrate, and recorded in the deposition. In re-examination, the deposition was successfully tendered. On appeal, the admission of the whole of the document was held to be erroneous. The right to tender was limited to the parts which had been the subject of cross-examination, together with other parts of the document which might explain or qualify what was already before the court. The decision was applied in Wentworth v Rogers (No 10), another authority referred to in support of the tender.

[101] Reliance was also placed, in support of the tender, on R v McGregor. There, a witness had used a document to refresh his memory in relation to a telephone number. The cross-examiner inspected the document, and cross-examined on other parts of it. It was held that this made the whole of the document admissible. The decision reflects a qualification of the rule that, if a party calls for and inspects a document held by the other party, the inspecting party is bound to put the document in evidence, if required to do so. The qualification is that it does not apply, if the document has been used by a witness to refresh the witness’s memory; unless cross-examination on the document extends beyond those parts used by the witness for that purpose. Since Ms Samaratunga’s affidavit was not a document called for by the cross-examiner, and no question of Ms Samaratunga’s having used the document to refresh her memory arose, neither the rule nor the case is of present relevance.

[102]  R v Foggo ex parte Attorney-General was also relied upon in support of the tender. However, that case dealt only with the question of the time at which a party might require a cross-examiner to tender a document. It assumed that the right to require the tender had arisen. Reliance was also placed on Attorney-General for the State of Queensland v Colin Lovitt QC. This case contains a discussion of the law relating to the obligation to tender documents used to refresh a witness’s memory, and which has been used in cross-examination. It is of no assistance.

[103] In my view, Mr Bell QC was entitled to tender only that part of Ms Samaratunga’s affidavit which was the subject of cross-examination. Accordingly, I propose to admit only paragraph 7 of the affidavit.”[158]

  1. [178]
    It can be seen above that his Honour referred to Meredith v Innes.[159] In that case, the document was not identified.  What occurred was described by Street CJ as follows:

“If the document had been put in the plaintiff’s hands, and if he had been asked to admit its accuracy, it may be that the counsel for the plaintiff would have been entitled to call for it and to put it in evidence, but that is not what happened.  All that he was asked about was what he had said to the magistrate, and, so far as the document was concerned, it seems to me that the position was the same as if Mr Boyce, in asking the questions that he did, had merely been reading from his brief.  To ask about a conversation or a statement is one thing.  To ask questions about the contents of a document, purporting to be a record of what took place, is another thing.  The latter was not done in this case, and, therefore, no foundation was laid for the reception of the document in evidence.”[160]

  1. [179]
    It was then held by the Full Court of New South Wales that the document had not been proved and ought not to have been admitted.  In that sense, what came into evidence was part of the document, being that part, which the witness orally agreed he had stated.  The Full Court effectively ruled that what was admissible was the oral evidence, not the documentary evidence.
  2. [180]
    Wentworth v Rogers (No 10)[161] supports the proposition that documents which have been proved through cross-examination are admissible.[162]
  3. [181]
    R v McGregor[163] was a case involving cross-examination on documents used to refresh memory.  That is a very different case to the present.  If a witness uses documents such as notes to refresh their memory, then the notes themselves are not admissible.  The exception to the general rule is that the cross-examiner may cross-examine on those parts of the notes which have been used to refresh memory without making the notes admissible.  If the cross-examiner cross-examines beyond those parts of the notes used to refresh memory, then the notes may become admissible and the cross-examiner may be required to tender them.  Nothing though in R v McGregor contradicts the general rule that if the cross-examiner cross-examines on a prior statement and in the course of the cross-examination proves the statement then the statement is admissible.  The judgment in R v McGregor and the cases referred to therein assume the existence of the primary rule and consider the exception which relates to cross-examination of documents only used to refresh memory; so do the cases of R v Foggo; ex-parte Attorney-General,[164] and Attorney-General for the State of Queensland v Colin Lovitt QC.[165]  To the extent that Lee v Chai is inconsistent with those principles as I have explained them, then I decline to follow it.
  4. [182]
    The document on which Mr Morton cross-examined was not a document used by the witness to refresh his memory.  It was a prior statement and the cross-examination made the statement admissible.  For those reasons I directed Mr Morton to tender the document.  It became Exhibit 6.

Conclusion

  1. [183]
    THE ORDERS OF THE COURT ARE:
    1. The claim against each of the first, second, third and fourth defendants is dismissed.
    2. Judgment for the plaintiff against the fifth defendant in the sum of $723,761.64.
    3. The parties be heard on costs.

 

Footnotes

[1]  As fourth defendant; Motor Accident Insurance Act 1994 (Qld) s 52.

[2]  As fifth defendant; Motor Accident Insurance Act 1994 (Qld) s 31.

[3]  Compulsory third party.

[4]  Evidence of Glenn Garside: Transcript of the trial at 1-36 to 1-37.

[5]  At 1-35 to 1-36.

[6]  At 1-37; Evidence of Jeff Robertson: Transcript of the trial at 3-67.

[7]  Further and better particulars of the plaintiff’s further amended reply, filed 15 August 2018, CFI 24.

[8]  Transcript of the trial at 1-15 to 1-16.

[9]  Run sheet for run 254: 1st to 4th defendants’ trial bundle, exhibit 7 at 38.

[10]  Report of Dr Gilmore, exhibit for identification B.

[11]  Report of Mr Boyd, exhibit for identification C.

[12]  Statement of Glenn Garside, exhibit 6.

[13]  Evidence of Glenn Garside: Transcript of the trial at 1-21.

[14]  At 1-22.

[15]  Agreed road distances schedule, exhibit 8.

[16]  Evidence of Glenn Garside: Transcript of the trial at 1-22.

[17]  At 1-25.

[18]  At 1-23.

[19]  At 1-27.

[20]  At 1-35 to 1-36.

[21]  At 1-36 to 1-37.

[22]  Evidence of Jonathon Fisher: Transcript of the trial at 3-19 to 3-20.

[23]  At 1-40.

[24]  This is the statement the subject of the ruling.

[25]  Statement of Glenn Garside, exhibit 6 at [17].

[26]  Evidence of Glenn Garside: Transcript of the trial at 1-41.

[27]  Exhibit 6.

[28]  Statement of Glenn Garside, exhibit 6 at [26]. 

[29]  Mr Garside said the word “truck” but the word was not reproduced in the transcript: Transcript of the trial at 1-46; Recording of the trial, 30 August 2018 at 12:13:06 pm.

[30]  Evidence of Glenn Garside: Transcript of the trial at 1-46 to 1-47.

[31]  At 2-9.

[32] Evidence of Robert Mooney: Transcript of the trial at 3-138.

[33]  At 3-138.

[34]  Agreed road distances schedule, exhibit 8.

[35]  Agreed road distances schedule, exhibit 8; Evidence of Robert Mooney: Transcript of the trial at 3-138.

[36]  Evidence of Robert Mooney: Transcript of the trial at 3-136 and 3-137.

[37]  At 3-137.

[38]  At 3-139 to 3-140.

[39]  At 3-140.

[40]  At 3-140 to 3-142.

[41]  At 3-142 to 3-144.

[42]  Evidence of Dan Rohan: Transcript of the trial at 2-69; Evidence of Jonathon Fisher: Transcript of the trial at 3-45.

[43]  Evidence of Dan Rohan: Transcript of the trial at 2-68 to 2-69; Run sheet for run 254, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 39.

[44]  Evidence of Dan Rohan: Transcript of the trial at 2-69; Statement of Michelle Lee Cody, 14 August 2018: 1st to 4th defendants’ trial bundle, exhibit 7 at 42.

[45]  Evidence of Dan Rohan: Transcript of the trial at 2-69; Agreed road distances schedule, exhibit 8.

[46]  Evidence of Dan Rohan: Transcript of the trial at 2-71; Travel time records, exhibit 17; Evidence of Nathan Ryder: Transcript of the trial at 3-88 to 3-90.

[47]  Run sheet for run 254, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 39.

[48]  Evidence of Dan Rohan: Transcript of the trial at 2-72.

[49]  At 2-68 to 2-69.

[50]  At 2-70.

[51]  At 2-71.

[52]  Statement of Michelle Lee Cody, 14 August 2018: 1st to 4th defendants’ trial bundle, exhibit 7 at 42.

[53]  Evidence of Dan Rohan: Transcript of the trial at 2-71.

[54]  Evidence of Jonathon Fisher: Transcript of the trial at 3-29.

[55]  Run sheet for run 58, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 58.

[56]  Evidence of Trevor Miles: Transcript of the trial at 3-79.

[57]  Agreed road distances schedule, exhibit 8. 

[58]  Evidence of Trevor Miles: Transcript of the trial at 3-74; Run sheet for run 58, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 62.

[59]  Evidence of Trevor Miles: Transcript of the trial at 3-74.

[60]  Evidence of Jonathon Fisher: Transcript of the trial at 3-24.

[61]  At 3-24. 

[62]  Evidence of Jeffrey Robertson: Transcript of the trial at 3-60, 3-70; Run sheet for run 25, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 2–13.

[63]  Evidence of Jeffrey Robertson: Transcript of the trial at 3-58.

[64]  At 3-63 to 3-66.

[65]  At 3-66.

[66]  Evidence of Nathan Ryder: Transcript of the trial aty 3-90 to 3-91.

[67]  Run sheet for run 256, 27 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 46.

[68]  Run sheet for run 254, 25 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 38.

[69]  Evidence of Jonathon Fisher: Transcript of the trial at 3-26.

[70]  Equipment defect notice, 24 November 2014: 1st to 4th defendants’ trial bundle, exhibit 7 at 54.

[71]  Evidence of Jonathon Fisher: Transcript of the trial at 3-55.

[72]  At 3-32.

[73]  At 3-33. 

[74]  Exhibit 14.

[75]  Run sheet for run 210: Bundle of Clermont run sheets, exhibit 14.

[76]  Evidence of Jonathon Fisher: Transcript of the trial at 3-33; ie, not liquid waste or overhead lift trucks.

[77]  At 3-34.

[78]  At 3-42.

[79]  At 3-42 to 3-43.

[80]  Evidence of John Coombes: Transcript of the trial at 3-93.

[81]  At 3-94.

[82]  At 3-93.

[83]  At 3-97.

[84]  At 3-97.

[85]   At 3-93.

[86]  At 3-93.

[87]  At 3-96 to 3-97.

[88]  At 3-97.

[89]  At 3-95.

[90]  At 3-94.

[91]  At 3-98.

[92]  Transcript of the trial at 4-9.

[93]  Mr Grant-Taylor QC only appeared leading Mr Green on the first day of the trial.

[94]  Mr Ryder was not on the road.

[95]  Evidence of Glenn Garside: Transcript of the trial at 1-36.

[96]  1st to 4th defendants’ trial bundle, exhibit 7 at 64 to 67.

[97]  (1959) 101 CLR 298.

[98]  Defence of the fifth defendant, filed 11 August 2017, CFI 2 at [1], which admits the paragraph of the statement of claim that pleads that one of the first to third defendants drove the truck.

[99] Motor Accident Insurance Act 1994 (Qld) s 31.

[100]  (1980) 140 CLR 40 at 47.

[101]  See the analysis by Chesterman J (as his Honour then was) in Pollard v Trude [2008] QSC 119.

[102]  Adopted in the second reading speech for the Civil Liability Bill 2003.

[103]  [2013] 1 Qd R 319.

[104]  With whom the other members of the Court of Appeal agreed.

[105]  (1980) 140 CLR 40 at 47.

[106]  See Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.

[107] Jones v Dunkel (1959) 101 CLR 298 at 304–305 followed by Chesterman J (as his Honour then was) in Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29; see also Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 and the analysis in Condos v Clycut Pty Ltd (2009) NSWCA 200 at [68].

[108]  Incorporated Nominal Defendant (Victoria) v Knowles [1987] VR 138; Motor Accidents Insurance Board v Padget (1997) 26 MVR 147; although see Nominal Defendant (NSW) v Hall (2001) 34 MVR 553; Johnson v Nominal Defendant (2003) 39 MVR 124.

[109]  It is unclear whether a footnote was meant to be inserted here in Dr Gillett’s report.

[110]  Report of Dr Gillett: Agreed bundle of medical documents, exhibit 5 at 9–10.  The reference to the tables is a reference to the regulations to the Civil Liability Act

[111]  Report of Dr Halliday: Agreed bundle of medical documents, exhibit 5 at 19.

[112]  Evidence of Dr Brett Halliday: Transcript of the trial at 2-62 to 2-64.

[113]  Amended quantum statement, exhibit 10 at [49].

[114]  Evidence of Allan Garside: Transcript of the trial at 2-28.

[115]  At 2-43.

[116]  At 2-53.

[117]  At 2-80 to 2-82.

[118]  Evidence of Heather Garside: Transcript of the trial at 3-14 to 3-15.

[119]  Evidence of Skye Scott: Transcript of the trial at 1-57.

[120]  At 1-59 to 1-61.

[121]  Evidence of Stuart Benjamin: Transcript of the trial at 1-28.

[122]  First report of Mr Benjamin, 21 August 2018, exhibit 12 at 21 [92].

 

 

[123]  Report of Mr Lee: Bundle of financial documents, exhibit 11 at 13 [5.9].

[124]  At 13 [5.10].  The reference to 4.5(iii) is a reference to Mr Garside undergoing surgery.

[125]  Evidence of Michael Lee: Transcript of the trial at 2-98.

[126]  I have used the round figure of $30,000.

[127]  They acknowledge the principles in Medlin v State Government Insurance Commission (1995) 182 CLR 1.

[128]  Defendants’ submissions on quantum at [33].

[129]  At [38].

[130]  (1980) 143 CLR 440.

[131]  Barwick CJ, Stephen J, Mason J (as his Honour then was) and Wilson J.

[132]  Report of Mr Lee: Bundle of financial documents, exhibit 11 at 21–22, appendices 7–8.

[133]  Supplementary report of Mr Lee: Bundle of financial documents, exhibit 11 at 62. 

[134]  Employment websites.

[135]  At 68, appendix 3.

[136]  Second supplementary report of Mr Lee: Bundle of financial documents, exhibit 11 at 90.

[137]  At 106–9.

[138]  At 109 [8.21]–[8.23].

[139]  Multiplier of 822, 30 years.

[140] Civil Liability Act 2003 (Qld) s 60.

[141]  See paragraph [85].

[142]  Report of Dr Gilmore, exhibit for identification B at 9–10.

[143]  Consistently with r 5.

[144]  [2018] 1 Qd R 429.

[145]  Transcript of the trial at 1-5. 

[146]  Report of Dr Gilmore, exhibit for identification B at 8.

[147] R v Bjordal (2005) 93 SASR 237; Read v Nominal Defendant [2007] QSC 297; and see Anikin v Sierra (2004) 211 CLR 621 at [28]; Fox v Percy (2003) 214 CLR 118 at [149].

[148]  Evidence of Glenn Garside: Transcript of the trial at 1-38.

[149]  At 1-40 to 1-41.

[150]  MH McHugh QC, ‘Cross-Examination on Documents’ (1985) 1 Australian Bar Review 51; P R MacMillan, ‘Cross-Examination on Documents’ (2005 26(3) Australian Bar Review 287.

[151]  (1820) Brod & Bing 284; 129 ER 976.  

[152]  [2018] Qd R 364; relevantly here see [41] to [43].

[153] Collins v The Queen (2018) 92 ALJR 517.

[154]  Section 668E of the Criminal Code 1899 (Qld).

[155] R v Collins [2018] 1 Qd R 364 at [47].

[156]  See also Evidence Act ss 18 and 101.

[157]  [2013] QSC 136.

[158]  Footnotes omitted. 

[159]  (1930) 31 SR(NSW) 104.

[160]  At 111.

[161]  (1987) 8 NSWLR 398.

[162]  At 409.

[163]  [1984] 1 Qd R 256.

[164]  [1989] 2 Qd R 49.

[165]  [2003] QSC 279.

Close

Editorial Notes

  • Published Case Name:

    Garside v Rohan & Ors

  • Shortened Case Name:

    Garside v Rohan

  • MNC:

    [2018] QSC 295

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    11 Dec 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 295 11 Dec 2018 Plaintiff's claim against first, second, third and fourth defendants dismissed; judgment for the plaintiff against the fifth defendant in the sum of $723,761.64: Davis J.
Primary Judgment [2018] QSC 313 20 Dec 2018 Costs judgment (fifth defendant to pay the plaintiff's costs on the indemnity basis and the first, second, third and fourth defendants' costs): Davis J.

Appeal Status

No Status