- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors  QCA 185
PAUL JOSEPH KENNY
PAUL JOSEPH KENNY
CARL ROBERT ANDERSON
CARL ROBERT ANDERSON
Appeal No 8945 of 2006
Appeal No 10170 of 2006
Appeal No 8946 of 2006
Appeal No 10169 of 2006
SC No 222 of 2002
SC No 303 of 2000
Court of Appeal
General Civil Appeal
Supreme Court at Townsville
5 June 2007
23 February 2007
McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, McMurdo P and Mackenzie J concurring as to the orders made, Jerrard JA dissenting in part
In Appeal No 8945 of 2006:
In Appeal No 10170 of 2006:
The appeal against the costs orders made on 27 October 2006 is dismissed with costs to be assessed
In Appeal No 8946 of 2006:
The appeal against the amount ordered to be paid to Carl Robert Anderson on 20 September 2006 is dismissed with costs to be assessed
In Appeal No 10169 of 2006:
The appeal against the amount ordered to be paid toCarl Robert Anderson for administration and management fees on 27 October 2006 is dismissed with costs to be assessed
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the appellant asserted that both Paul Kenny and Carl Anderson contributed to their injuries by not wearing properly fastened motorcycle helmets at the time of the accident – whether it was open on the evidence for the trial judge to find both riders were wearing properly fastened helmets
TORTS – NEGLIGENCE – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – APPORTIONMENT IN PARTICULAR SITUATIONS AND CASES – where the judge was entitled to find that the headlight on the motorcycle was illuminated at the time of the accident (twilight) – where the appellant further contended that apportionment of liability at 70 per cent and 30 per cent was therefore in error – whether apportionment of liability should be disturbed
TORTS – NEGLIGENCE – STATUTES, REGULATIONS, ETC – ADMISSIBILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – RELATING TO VEHICLES AND TRAFFIC – PARTICULAR STATUTES, REGULATIONS, ETC – where two key findings were made, that Carl Anderson believed he had his father's authority to ride the motorcycle; and that William Anderson did not in fact authorise his son Carl Anderson to ride the motorcycle at the time and place of the collision – whether these findings were inherently inconsistent – whether they gave rise to defences under s 4G(1)(a) and s 4G(1)(b) Motor Vehicles Insurance Act 1936 (Qld) for William Anderson as owner and Carl Anderson as rider of the motorcycle, against the appellant's claim for recovery of debt
INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – UNINSURED VEHICLES – QUEENSLAND – OTHER MATTERS – where both motorcycles involved in the accident were uninsured – whether the provisions of the now repealed Motor Vehicles Insurance Act 1936 (Qld) applied at the time of the accident – whether the repeal of that Act and the enactment of the Motor Accident Insurance Act 1994 (Qld) specifically the transitional provisions in s 104 and s 106 had the effect of extinguishing the appellant's claims and were consistent with s 20(2), s 20(3) and s 20(4) Acts Interpretation Act 1954 (Qld)
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – where Paul Kenny's future economic loss was discounted by 20 per cent – where no discount was applied to past economic loss – where the appellant claimed that both warranted a discount of 25 per cent – whether past economic loss should be discounted – whether future economic loss should also be discounted further
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where administration costs were awarded – where the appellant contends that a less expensive administrator was available and therefore a reduction in the award of administration costs was warranted – whether the trial judge erred in appointing the administrator and awarding costs accordingly
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where Paul Kenny was awarded costs on both the claim and counter-claim on an indemnity basis – where that order was made because of his pre-trial offers to the appellant to settle – where those offers were not made strictly in accordance with Order 26 Supreme Court Rules 1900 (Qld) – where Paul Kenny was affected by intellectual disabilities – whether his capacity was so impaired that the pre-trial offers were not capable of acceptance without sanction by the court – whether the pre-trial offers were consistent with the spirit of Order 26 Supreme Court Rules 1900 (Qld) – whether the order for indemnity costs was within the proper exercise of judicial discretion
Acts Interpretation Act 1954 (Qld), s 14A, s 20(2), s 20(3), s 20(4)
Evidence Act 1997 (Qld), s 92
Motor Accident Insurance Act 1994 (Qld), s 3(a), s 104, s 106
Motor Vehicles Insurance Act 1936 (Qld), s 4D, s 4F(2), s 4G(1)(a), s 4G(1)(b)
Public Trustee Act 1978 (Qld), s 59
Supreme Court Rules 1900 (Qld), O 26
Uniform Civil Procedure Rules 1999 (Qld), Ch 9 Pt 5
Board of Inland Revenue v Winston Herbert Edward Suite  AC 657 at 665, considered
Elford v FAI General Insurance Company Limited  1 Qd R 258, 265, considered
Heasman v Jordan  Ch 744;  3 All ER 101;  3 WLR 432, considered
IRC v St Lukes Hostel Trustees (Registered) (1930) 144 LT 50 at 51, considered
Lovell O’Grady & James v FLAIEU of Australia (1978) 22 ALR 704 at 732, considered
Willett v Futcher (2005) 221 CLR 627, considered
S C Williams QC, with C A White, for the appellant in each appeal
K C Fleming QC, with R C Fleming, for the third respondent in Appeal No 8945 of 2006, the first respondent in Appeal No 8946 of 2006 and the respondent in Appeal No 10169 of 2006
R C Morton for the first respondent in Appeal No 8945 of 2006 and the respondent in Appeal No 10170 of 2006
G R Mullins for the second respondent in Appeal No 8945 of 2006 and the second respondent in Appeal No 8946 of 2006
Tress Cox for the appellant in each appeal
Ruddy Tomlins & Baxter (Bowen) for the third respondent in Appeal No 8945 of 2006, the first respondent in Appeal No 8946 of 2006 and the respondent in Appeal No 10169 of 2006
Murphy Schmidt for the first respondent in Appeal No 8945 of 2006 and the respondent in Appeal No 10170 of 2006
Quinn & Scattini for the second respondent in Appeal No 8945 of 2006 and the second respondent in Appeal No 8946 of 2006
- McMURDO P: Jerrard JA has set out the facts and the multiple issues in these appeals so that my reasons may be briefly stated.
Did Carl Anderson and Paul Kenny contribute to their injuries by not wearing helmets?
- The Nominal Defendant claimed by way of contributory negligence that Carl Anderson and Paul Kenny each contributed to the injuries they received in the motorcycle accident by not wearing a properly fastened motorcycle helmet.
- I agree with Jerrard JA that it was open to the learned primary judge to find that both Carl Anderson and Paul Kenny were wearing properly fastened helmets at the time of the collision. In this appeal the Nominal Defendant challenged only the finding that Paul Kenny was wearing a helmet.
- Although there was a body of evidence to support the contrary conclusion, that evidence was by no means so compelling that the judge was required to accept it. Ms Tudehope's statement had to be viewed cautiously as it was not tested in cross-examination. A judge would have been entitled to give it very little weight. Mr Moss expressed some uncertainty on the issue. The medical evidence was that Carl Anderson's and Paul Kenny's head injuries could have occurred whether or not they were wearing helmets and the similarity of their head injuries was as consistent with them both wearing helmets as with both not wearing helmets or as with only one wearing a helmet. The onus was on the Nominal Defendant to establish its claim for contributory negligence against both Carl Anderson and Paul Kenny on the basis that they were not wearing properly fastened helmets. Neither Paul Kenny nor Carl Anderson could remember whether they were wearing helmets at the time of the accident because of their head injuries. The judge was entitled to accept Paul Kenny's evidence that he recalled wearing a helmet on the day of the accident when he and Carl Anderson went out riding and that at Pelican Creek prior to the accident he was sitting on the helmet he had been wearing earlier that day. In the absence of any evidence that the helmet to which Paul Kenny referred was found after the accident at Pelican Creek or somewhere other than the accident site, her Honour was entitled, as she did, to infer on balance that both Carl Anderson and Paul Kenny were wearing motorcycle helmets at the time of the collision and that they were apparently fastened as required. This ground of appeal fails.
- I also agree with Jerrard JA's reasons for refusing the Nominal Defendant's appeal in respect of the apportionment of liability between Clinton Anderson and Carl Anderson as 70 per cent and 30 per cent respectively, despite her Honour's error in finding that Clinton Anderson was riding a motorcycle without an illuminated headlight.
- Clinton was riding out of a private driveway onto a bitumen road in an area where the speed limit was 80 kph. Although it was twilight, her Honour found there was sufficient light at 7 pm for someone in Clinton's position keeping a proper lookout to see the motorcycle ridden by Carl, even though Carl's motorcycle did not have an illuminated headlight and was travelling at a speed of 110 kph. These factual findings are not disputed and supported the 70 per cent/30 per cent apportionment of liability determined by the judge.
Other issues relating to the Nominal Defendant's liability
- It is not contentious in the appeals that Carl's evidence at trial supported the primary judge's conclusion that the then 14 year old Carl believed on reasonable grounds that the motorcycle he was riding was registered (and therefore insured) and that he had the authority of his father, William Anderson, the owner of the motorcycle, to ride it at the time and place of the collision.
- The judge also found that Carl did not in fact have his father's authority to ride the motorcycle at the time and place of the collision.
- The two findings (first, that the 14 year old Carl believed on reasonable grounds that he had his father's authority to ride the motorcycle at the time and place of the collision and, second, that William did not in fact authorise Carl to ride the motorcycle at the time and place of the collision) may initially appear inconsistent. The evidence as to the relationship between the father, William Anderson, and his then 14 year old son, Carl, demonstrates, however, that these two findings were both reasonably open and not necessarily inconsistent because of the subjective element of the finding as to Carl's belief.
- The facts set out by Jerrard JA shows that William had on occasions before the accident reproached Carl for riding on bitumen roads, although rather ineffectually. The 14 year old Carl could quite reasonably (the standard being that of a reasonable 14 year old) have interpreted the father's weak remonstrances as meaning that he had his father's begrudging permission to ride the motorcycle at the time and place of the collision. On the other hand, William gave evidence that on the day of the accident he told Carl not to ride the motorcycle after dark because the headlight was not working and to try to keep away from the streets. The judge was entitled to accept William's evidence and conclude from it that he did not give authority to Carl to ride the motorcycle at dusk, on and down (rather than merely wheel the motorcycle across) a public bitumen road where the speed limit was 80 kph, even though Carl believed (reasonably but mistakenly) that he had such authority. Those two factual findings could rationally co-exist.
- It follows that William, as the owner of the uninsured motorcycle driven by Carl in the collision, had a defence under para (a) of the proviso to s 4G(1) Motor Vehicles Insurance Act 1936 (Qld) ("the 1936 Act") to the debt claimed by the Nominal Defendant and that Carl, as the driver of the uninsured motorcycle involved in the accident, had a defence under para (b) of the proviso to s 4G(1) to the Nominal Defendant's action in debt under the 1936 Act.
Were the Nominal Defendant's claims against William Anderson and Carl Anderson extinguished?
- Because of that conclusion it is not essential to the determination of this appeal to conclude whether the repeal of the 1936 Act by the Motor Accident Insurance Act 1994 ("the 1994 Act") has the effect of extinguishing the Nominal Defendant's claim against William Anderson and Carl Anderson which arose under the 1936 Act.
- Were it necessary to reach a conclusion on this issue, I would agree with Jerrard JA that the effect of the transitional provisions in s 104 and s 106 of the 1994 Act is that the rights and liabilities of the Nominal Defendant under the 1936 Act include a right to claim for indemnity as if the 1994 Act had not been enacted. This has the result that any claim by the Nominal Defendant against William Anderson or Carl Anderson was not extinguished by the repeal of the 1936 Act and the enactment of the 1994 Act. This conclusion is consistent with s 20(2), (3) and (4) Acts Interpretation Act 1954 (Qld). It is also consistent with s 3(a) of the 1994 Act which states as the first of that Act's objects: "to continue and improve the system of … the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland" (my emphasis). Adopting a purposive approach to the construction of ss 104 and 106, it seems implausible that the legislature would have intended the construction given by the primary judge without stating so in the clearest of terms.
The Nominal Defendant's appeal against the quantum of Paul Kenny's economic loss
- I agree with Jerrard JA's reasons for reducing by a total of $56,226 the damages awarded to Paul Kenny on 20 September 2006 for past economic loss, past lost superannuation contributions and interest. This is only about 6.4 per cent of that judgment sum. This finding necessitates a similar percentage reduction of the later administration costs award in his favour on 27 October 2006. The result of this Court's intervention is that the total damages award to Paul Kenny will be reduced by $71,469. In the circumstances of this case, this is a substantial enough alteration to his total damages award to warrant this Court's intervention: see Elford v FAI General Insurance Company Limited.
- I agree with Jerrard JA's reasons for rejecting the Nominal Defendant's contention that the primary judge's awards of administration costs in both Paul Kenny's and Carl Anderson's claims should be reduced. The judge gave brief but adequate reasons supporting both plaintiffs' preferred choice of administrator. The evidence does not establish that amount allowed by the judge as administration fees was unreasonable. As Jerrard JA explains, the administration costs awarded in Paul Kenny's favour on 27 October 2006 should, however, be reduced by 6.4 per cent ($15,243) to reflect the reduction in the judgment sum of $56,226, so that the administration costs in his case become $222,923.
Paul Kenny's indemnity costs?
- In Paul Kenny's claim, the learned primary judge recognised that the offer made on his behalf to settle the claim on 27 March 1997 in the amount of $410,000 plus costs was not made in accordance with O 26 r 2(3) of the Supreme Court Rules ("SCR") which then applied. Her Honour considered that it was nevertheless an offer to settle capable of acceptance despite Paul Kenny's intellectual disabilities. She was satisfied that on balance Paul Kenny would have been able to accept that offer himself without requiring its sanction by the court, even though he was not capable of administering the subsequent substantial amount of money awarded to him as a result of his successful claim. Her Honour considered that, in any case, the offer would have been capable of sanction at the time because of a number of difficulties in the case which would not necessarily have been determined as favourably for him as they ultimately were. Whilst her Honour did not consider the offer to settle on Paul Kenny's behalf in 1997 was under the then applicable SCR, her Honour was satisfied that because the offer was genuine and capable of acceptance, she should exercise her discretion to award indemnity costs from that date.
- I cannot agree with the primary judge that the offer made was one capable of acceptance despite Paul Kenny's intellectual disabilities without sanction by the court. That finding is, in my view, inconsistent with her Honour's findings elsewhere in her reasons for judgment in Paul Kenny's claim. Section 59(1) Public Trustee Act 1978 (Qld) requires the sanction of the court of every settlement where the plaintiff is "a person under a legal disability", a term defined elsewhere in the Act as "a person with impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000 (Qld)" ("G&A Act"). Under the G&A Act, "capacity, for a person for a matter" means:
"the person is capable of –
(a)understanding the nature and effect of the decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way."
- Neurosurgeon, Dr Leigh Atkinson, who examined Paul Kenny on numerous occasions over some years and whose opinion was accepted and relied on by her Honour, considered that the accident caused Paul Kenny to be "more likely to make the wrong decisions … vulnerable and at risk from poor decisions [and] … needs Protection Orders." Her Honour concluded that both Paul Kenny and Carl Anderson required a protection order because of their brain injuries and that it was "necessary for the court to sanction the damages agreed between Carl Anderson and the Nominal Defendant" who, her Honour found, was not "as disadvantaged in the labour market as Paul Kenny".
- Despite that error, her Honour's view that the offer made on behalf of Mr Kenny in 1997 was capable of acceptance because it could properly have been sanctioned by the court was correct. It was therefore capable of acceptance subject to the court's sanction. Although it was much less than the amount ultimately awarded to Paul Kenny by her Honour, many of the findings made at trial could equally have been determined against him. He could have been completely unsuccessful. A settlement in 1997 in favour of Mr Kenny in the amount of $410,000 plus costs would have been in his interests and would almost certainly have been sanctioned by the court. Although there had been no offer under the SCR on Paul Kenny's behalf so that O 26 r 9(1) did not apply to ordinarily require the judge to make a costs order in Mr Kenny's favour on a solicitor and client basis, her Honour's order for costs "on an indemnity basis" was an order open to be made by the judge in the exercise of her general discretion as to the appropriate order. Her Honour's order for indemnity costs in Paul Kenny's favour was consistent with the spirit of O 26 SCR and with the spirit of the successor to the SCR, the Uniform Civil Procedure Rules 1999 ("UCPR") Ch 9 Pt 5 and with the philosophy of the UCPR recorded in UCPR r 5.
- I am not persuaded that the primary judge's decision to exercise her discretion to award what are now termed under the current UCPR "indemnity costs" was outside the proper exercise of judicial discretion in making a costs order. It follows that I would dismiss the Nominal Defendant's appeal in respect of the costs order made against it in Paul Kenny's case.
Summary and Orders
- Because the Nominal Defendant has been only partially successful in respect of its appeal concerning Paul Kenny's claim and has been unsuccessful in all of the other issues raised in these inter-related appeals, I would make no order as to costs in the Nominal Defendant's appeals against the judgments in favour of Paul Kenny.
- The orders I propose are as follows:
In Appeal No 8945 of 2006 Paul Joseph Kenny v Nominal Defendant and by counterclaim William John Anderson and Carl Anderson:
- The appeal is allowed.
- The amount of $879,181.68 ordered to be paid to Paul Joseph Kenny on 20 September 2006 is reduced to $822,955.68 and the amount ordered to be paid to him for administration and management fees on 27 October 2006 is reduced from $238,165 to $222,923.
- No order as to costs.
In Appeal No 10170 of 2006 Paul Joseph Kenny v Nominal Defendant and by counterclaim William John Anderson and Carl Anderson, the appeal against the costs orders made on 27 October 2006 is dismissed with costs to be assessed.
In Appeal No 8946 of 2006, Carl Robert Anderson v Nominal Defendant and by counterclaim William John Anderson the appeal against the amount ordered to be paid to Carl Robert Anderson on 20 September 2006 is dismissed with costs to be assessed.
In Appeal No 10169 of 2006 Carl Robert Anderson v Nominal Defendant and by counterclaim William John Anderson, the appeal against the amount ordered to be paid to Carl Robert Anderson for administration and management fees on 27 October 2006 is dismissed with costs to be assessed.
- JERRARD JA: This proceeding involved four separate appeals from two judgments (one on liability, and one on costs and administration expenses) given in proceedings in the Trial Division of this Court, arising out of a collision on 26 March 1994 between two unregistered motorcycles. One was ridden by the respondent Carl Anderson, who was carrying the respondent Paul Kenny as a pillion passenger. The other was owned and ridden by a Clinton Anderson, a defendant in the proceedings below, but not a respondent to the appeal. Clinton Anderson had a Heather Brooker as his pillion passenger; she played no part in the trial or the appeal. Clinton Anderson was 15 years old at the time of the collision, and Carl Anderson was 14; both riders were unlicensed. Paul Kenny was 15 years old and Heather Brooker was of similar age.
- Carl Anderson was riding a motorcycle owned by his father, the respondent William John Anderson, the registration of which had been due for renewal on 18 March 1994, but not renewed as at 26 March 1994 or thereafter. Clinton Anderson’s motorcycle was simply not registered. The collision occurred on Mt Coolon Road, south of Collinsville, when Carl Anderson was riding his father’s motorcycle on that road, and Clinton Anderson was riding his motorcycle out of a driveway giving access to that road from a private property. The collision occurred just as or after Clinton Anderson rode his motorcycle out onto the roadway, and all four young people were very seriously injured.
- Paul Kenny brought an action against The Nominal Defendant, and Carl Anderson brought an action against The Nominal Defendant, Paul Kenny, and Clinton Anderson. It appears Carl Anderson claimed as plaintiff against Paul Kenny because of uncertainty by him – due to the brain injuries received by each of Carl Anderson and Paul Kenny – as to which of them was riding the motorcycle on which they were travelling. For its part the Nominal Defendant claimed against Paul Kenny (for the same reason Carl Anderson claimed against Paul Kenny), Carl Anderson, William John Anderson, and Clinton Anderson. The Nominal Defendant’s claims against Carl Anderson and William John Anderson were against them as the driver and owner respectively of the unregistered motorcycle Carl Anderson rode, and The Nominal Defendant claimed indemnification from them for the damages it paid, or was ordered to pay, to Heather Brooker or Paul Kenny. It also pleaded a claim against William Anderson for indemnity for the amount of any damages and costs paid to Carl Anderson, but that pleaded claim was not pursued on the appeal.
- The learned trial judge found for each of Paul Kenny and Carl Anderson in their claims for damages against The Nominal Defendant, and for Carl Anderson and William John Anderson in The Nominal Defendant’s claims against each of them for indemnity. There does not appear to have been a judgment given in Carl Anderson’s claim against Paul Kenny, or against Clinton Anderson, although that fact did not concern any of the parties to the appeal. The Nominal Defendant’s claim against Clinton Anderson, who did not appear at the trial and who filed no defence, had been adjourned at the trial.
The legislation and the issues
- The actions by Paul Kenny and Carl Anderson against The Nominal Defendant were based on s 4F(2) of the Motor Vehicles Insurance Act 1936 (Qld), and on transitional provisions in the Motor Accident Insurance Act 1994 (Qld). The 1936 Act provided in s 3(1) that the owner of any motor vehicle should during its registration indemnify the owner and all other person by a contract of insurance, against all sums for which the owner or any such other person should become legally liable by way of damages in respect of such motor vehicle for accidental bodily injury to any person. Section 3(2) provided that every person other than the owner who was at any time in charge of such a motor vehicle should be deemed to be the authorised agent of the owner.
- Section 4D of the 1936 Act created a body corporate by the name and style of “The Nominal Defendant (Queensland),” and s 4F provided that claims for damages in respect of accidental bodily injury in connection with an uninsured motor vehicle, for which damages the owner of such uninsured vehicle would be legally liable under that Act were it insured, might be made to The Nominal Defendant (Queensland).
- Paul Kenny needed to establish in his statutory right of action against The Nominal Defendant that Clinton Anderson was negligent as the rider of the unregistered and uninsured motor vehicle (and that as the owner he would have been legally liable if the motorcycle had been insured) and, or alternatively, that Carl Anderson was negligent as the rider of an unregistered and uninsured motorcycle, and that William James Anderson would have been liable as owner, had the bike been registered and insured. The learned trial judge found that each of Carl Anderson and Clinton Anderson had been negligent; the statutory agency provided for in s 3(2) of the 1936 Act would have rendered the respective owners liable had the bikes been insured.
- Section 4G of the 1936 Act provided that any amount properly paid by The Nominal Defendant (Queensland) in satisfaction of a claim or judgment recovered against it, and any costs or expenses properly incurred, might be recovered as a debt from, inter alia, the person who was the owner of the vehicle at the time of the occurrence out of which the claim arose, or where some other person was driving the vehicle, from the owner and the driver jointly or severally. Hence the claims against Carl Anderson and William John Anderson for indemnification for the money paid to Heather Brooker – whose claim had been settled, – and the sum ordered to be paid to Paul Kenny. Section 4G gave William John Anderson a defence to the claim for indemnification if William John Anderson established to the satisfaction of the court that at the time of the occurrence Carl Anderson was riding the unregistered, and therefore uninsured, motorcycle without William John Anderson’s authority. Section 4G also provided a defence to Carl Anderson, if he established that at the time of the collision he was riding his father’s motorcycle with his father’s authority, or that Carl Anderson had reasonable grounds for believing and did in fact believe that he had such authority, and also had reasonable grounds for believing and did in fact believe that the motorcycle was insured under that Act.
- The learned judge held that each of William John Anderson and Carl Anderson had established their respective defences. The Nominal Defendant pleads that the findings were inconsistent, and principally challenges the finding that William John Anderson had established that Carl Anderson was riding his father’s motorcycle without his father’s authority.
- The learned judge also held that even if either Carl or William John Anderson, or both of them, failed to establish their statutory defence to a claim against them for indemnification for the damages awarded or paid to Heather Brooker or Paul Kenny, the right of indemnification given by s 4G of the 1936 Act did not survive the repeal of that Act and its replacement by the Motor Accident Insurance Act 1994 (Qld), which came into force on 1 September 1994. The Nominal Defendant has appealed that conclusion, and has also challenged the apportionment of liability between Carl Anderson and Clinton Anderson (and thus the quantum of damages payable by it to Carl Anderson), the quantum ordered by the learned trial judge for the future administration costs of the sums ordered to be paid to Carl Anderson and Paul Kenny; and has appealed against the finding, relevant to contributory negligence, that Paul Kenny was wearing a motorcycle helmet at the time of the collision.
The helmet issue
- The Nominal Defendant pleaded against both Paul Kenny and Carl Anderson that the injuries or damage each had suffered were caused or contributed to by the failure of each to wear a motorcycle helmet, or a properly adjusted helmet at the time of the collision. The learned judge concluded on the balance of probabilities that both Carl Anderson and Paul Kenny were wearing motorcycle helmets, and was not satisfied that either of them did not have the helmet fastened as required. The judge accordingly found that neither had contributed to their injuries by a failure to wear a properly fastened helmet. Both had suffered similar severe head injuries. The learned judge accepted opinion evidence from a Dr Leigh Atkinson in a report dated 12 April 2006, that wearing a helmet reduces the neurotrauma in a large number of motorcycle riding accidents, but that both these riders may have suffered the same injuries even if they were both wearing helmets. Dr Atkinson was unable to identify from the neurotrauma which of the two persons on the motorcycle was wearing the helmet. That last observation reflected the evidence that three helmets were located at the scene of the collision by the police, not four. However, the evidence did not reveal the extent of a search for a fourth helmet, or how and by whom helmets were removed from those injured cyclists who had been wearing helmets. It was common ground that both Clinton Anderson and Heather Brooker were wearing helmets.
- Dr Atkinson said in cross-examination by counsel for The Nominal Defendant that the fact that Mr Kenny had suffered some head lacerations around the top and side of his head made the conclusion that he either was not wearing a helmet, or that it was not properly strapped up, a reasonable explanation; he also said it was possible to get lacerations (of that sort) if a helmet was “screwed about” or knocked about in a fall. In answer to questions by the learned trial judge, Dr Atkinson said it was possible for helmets to be wrenched off or dislodged in accidents, but he would expect some injuries to the throat or jaw area if a helmet was wrenched off at speed.
- The other evidence was that neither Paul Kenny nor Carl Anderson had such throat injuries. However, The Nominal Defendant accepted on the appeal that Carl Anderson was wearing a helmet at the time of the accident. Mr Williams QC, its counsel on the appeal, submitted that the obvious conclusion was that Carl Anderson’s helmet was not properly secured, and came off; Paul Kenny was not wearing one; that was why three helmets were found, and why both suffered similar sorts of head injuries. The Nominal Defendant relied on the appeal on the evidence of Mr Moss, who had been with Carl Anderson and Paul Kenny shortly before the accident, and whose evidence was that he was “pretty sure” that Carl Anderson was wearing a helmet, and that he “didn’t think” that Paul Kenny was. That evidence by Mr Moss supported The Nominal Defendant’s argument that Carl Anderson had a helmet on and Paul Kelly did not, as did a statement from a witness Megan Tudehope, who saw the motorcycles immediately before and immediately after the collision. She described Carl Anderson’s motorcycle as “the motorbike without the lights on”, and she saw a person fall off that motorcycle, and that that person was not wearing a helmet. She was not called as a witness, but her statement to the police – made 30 March 1994 – was put in evidence (she was overseas at the time of the trial); a hearsay portion of it was excluded. That statement, with the evidence of Moss and the fact that three helmets were found, supports a finding that Paul Kenny was not wearing a helmet, a conclusion consistent with the medical evidence.
- Paul Kenny gave evidence and swore that while he could not remember the actual collision, he did have a helmet in his possession that day, which he could remember because the padding inside “wasn’t that great”. He could recall sitting on it at one stage in the afternoon, while waiting for Carl Anderson and Mr Moss. He could also recall that both he and Carl Anderson were wearing their helmets when they left Carl Anderson’s grandfather’s residence that day to go out riding on the motorcycles.
- The learned judge wrote that Carl Anderson’s memory was also affected by the serious head injury he had suffered, and that although he had no recollection of the collision or who was wearing a helmet at the time, Carl Anderson could recall that both he and Mr Kenny were wearing helmets when they set off together earlier in the day. The judge went on to observe that if Mr Anderson was correct about that, it seemed unlikely that they would have lost or mislaid those helmets, and more likely than not that they were still each wearing a helmet at the time of the collision. The Nominal Defendant made the point on the appeal that Carl Anderson did not give that evidence, although he did give evidence that he had worn a helmet on every occasion before the accident; The Nominal Defendant argued on the appeal that that error of fact by the learned judge had influenced the conclusion that both Mr Kenny and Carl Anderson were wearing helmets at the time. The point is good, but the learned judge had earlier quoted from Mr Kenny’s evidence that he recalled their both wearing helmets when leaving Mr Anderson’s grandfather’s home. That evidence, accepted by the judge, still left open the conclusion for the judge that it was unlikely Mr Kenny or Carl Anderson would have lost or mislaid those helmets during the day.
- The availability of helmets does not establish either that they were being worn or were not being worn. The evidence supported the conclusion that each of Carl Anderson and Paul Kenny had a helmet available to him. The evidence of Moss would tip the balance in favour of the finding sought by The Nominal Defendant, were it not for the fact that in re-examination Mr Moss said:
“I don’t know if he had a helmet on or not. Like it’s that many years ago. I know when we were down the creek riding around he didn’t have a helmet on so I don’t think he plucked one out of the gum tree and put it on his head, so ---”.
The problem for the appellant with that evidence is that Mr Kenny agreed that for some of the time when he was waiting at the creek, he did not have a helmet on (he was sitting on it); that fact and that re-examination weakens the force of Mr Moss’ evidence. He may have seen Mr Kenny at a time when the latter was not wearing a helmet, although he had worn it earlier and may have put it on again. The conclusion was therefore open to the learned trial judge that The Nominal Defendant had not established that Mr Kenny was not wearing a helmet. On the available evidence, it was really only speculation whether the helmets either were wearing were properly fastened. A finding that Paul Kenny was not wearing a helmet would have been open, but that does not assist The Nominal Defendant.
- The Nominal Defendant challenged the finding that liability for the collision should be apportioned 70 per cent to Clinton Anderson and 30 per cent to Carl Anderson. The learned judge had found that the collision happened at about 7:00 pm, and just before nautical twilight, which an astrological phenomenon certificate, put in evidence, recorded was at 7:02 pm that evening.
- The judgment records that at nautical twilight light will have deteriorated badly although general outlines will still be visible. Carl Anderson was riding his motorcycle at a speed of probably about 110 kph, which was 30 kph above the speed limit, with no headlight illuminated on the motorcycle he was riding. Clinton Anderson was entering the bitumen surfaced Mt Coolon Road, and was obliged to give way to all vehicles on the road he was entering. The learned judge found that Clinton Anderson would have seen Carl Anderson’s motorcycle if Clinton Anderson had been keeping a proper lookout for oncoming traffic, and that Clinton Anderson was negligent in entering that road and failing to give way to Carl Anderson’s motorcycle. The judge found there was sufficient light for the oncoming motorcycle to be seen, and that Clinton Anderson, like Carl Anderson, did not have the headlight on his motorcycle illuminated.
- The learned judge concluded also that it was negligent of Carl Anderson to be riding a motorcycle at that time of day without the headlight illuminated, and also negligent to be riding too fast, and in excess of the speed limit at that time of evening. The judge went on:
“Nevertheless he would not have expected an unilluminated motorcycle to come out of a private driveway into his path. In these circumstances, I would attribute liability for the collision 70 per cent to Clinton Anderson and 30 per cent to Carl Anderson.”
- The Nominal Defendant challenges only the conclusion that Clinton Anderson did not have his headlights illuminated. I agree with the argument that that finding is not supported by the evidence. That evidence consists of the statement by Megan Tudehope, who was not called as a witness, and whose statement specifies that the motorcycle ridden by Carl Anderson had no light on, which was consistent with other evidence – from William James Anderson – that the headlamp on that motorcycle was not working. Megan Tudehope’s statement does not imply in any way that Clinton Anderson’s headlamp was not on. The evidence of Mr Moss, who was following behind the motorcycle ridden by Carl Anderson, was that he did not see the collision, and he said nothing either way as to whether Clinton Anderson’s motorcycle had its headlight on or not. He did say that he did not see Clinton Anderson “pull out.” Counsel for Carl Anderson submitted that because Mr Moss said he did not see Clinton Anderson’s motorcycle before the collision, it was reasonable to infer that that was because the headlight on the motorcycle was not illuminated. If it had been, Mr Moss would have been able to see Clinton Anderson’s motorcycle. With due respect, that reasoning is really speculation. The evidence is simply silent as to whether Clinton’s headlight was illuminated.
- It follows that the learned trial judge reasoned in part on a finding of fact which could not be supported, when apportioning liability 70/30. But assuming that Clinton’s headlight was illuminated, he was still the rider with the greater responsibility for the collision. He was obliged to keep a proper lookout and to yield right of way to Carl Anderson. The Nominal Defendant did not challenge the conclusion that Clinton Anderson would have seen Carl Anderson’s motorcycle had he been keeping a proper lookout (Ms Tudehope saw it). Even with Carl Anderson’s unilluminated headlamp and excessive speed at dusk or near dark, Clinton Anderson has the greater liability. On those facts his liability could be apportioned as high as 70 per cent, and I would not disturb that apportionment.
Authority to ride
- The Nominal Defendant urged that the trial judge had erred in finding that Carl Anderson did not have his father’s authority to ride the motorcycle at the time of the collision, contending that finding was contrary to and against the weight of the evidence. It also argued that in any event, that finding was inconsistent with the other finding made by the judge, that Carl Anderson believed on reasonable grounds when riding that motorcycle at the time of the accident that he had his father’s authority to ride it. The learned judge also found that Carl Anderson also believed on reasonable grounds that the motorcycle was registered and therefore insured.
- The Nominal Defendant made the point that Carl Anderson had sworn only to a belief that, because the motorcycle had a number plate on it, it was registered, and not to a positive belief – as required by the 1936 Act – that it was insured. I respectfully agree with the learned judge that Carl Anderson’s evidence described reasonable grounds on which to believe that the motorcycle was registered and therefore insured, and that he believed it was. The Nominal Defendant did not challenge the finding that Carl Anderson believed on reasonable grounds that he had his father’s authority to ride the motorcycle at the time of the collision. That finding was certainly supported by Carl Anderson’s evidence. His evidence-in-chief was that around the time of the collision he rode a motorbike at least three times a week, having first started when he was about three and a half, and had ridden motorbikes all his life. He had ridden “all over Collinsville, out the Bowen River”, and had driven “on road” as well as “off road”. He “supposed” he rode a lot “on the road”, but acknowledged that his father had told him not to ride on roads; he said his father knew that he did.
- In cross-examination by counsel for Mr Kenny, he agreed that with his father’s knowledge he rode the motorcycle anywhere and everywhere whenever he liked. In cross-examination by counsel for The Nominal Defendant, he agreed that he rode that bike with his father’s knowledge, and that he would tell his father he had taken it. He was not sure whether his father said there were some places he was not allowed to take the bike, and could not really recall his father imposing any restrictions on his use of it. He swore in cross-examination that his father knew that he rode the bike at times on a public highway, partly because on occasions his father would ask how he got to a particular location, and would be told how Carl Anderson had, and partly because sometimes they would ride together on a public highway.
- The Nominal Defendant submitted only that the finding that Carl Anderson believed on reasonable grounds that he had his father’s authority to ride his father’s bike was inconsistent with the finding that in fact he did not have that authority. It did not otherwise challenge the former finding, and attacked only the latter. That potential inconsistency in findings is foreshadowed by the terms of s 4G of the 1936 Act, and it is a question of the adequacy of the evidence to support the two conclusions. There was clearly adequate evidence to support the conclusion that Carl Anderson did believe, and had reasonable grounds for believing, that he had his father’s authority to ride that bike at that time. But his father’s evidence was different.
- William James Anderson represented himself at the trial. He did not cross-examine Carl Anderson at all. His own evidence-in-chief, and in response to a question by the learned trial judge, was that Carl Anderson did not have his authority to ride that motorcycle on the road. In cross-examination he told Carl Anderson’s counsel that he knew that Carl rode on the streets from time to time, but that he (William Anderson) did not encourage it:-
“What was supposed to be happening, and I know this didn’t happen all the time, he was supposed to be riding away from the bitumen road, away from any of the streets and come across the road – wheel it across the road. That’s what was supposed to be happening.”
- Nevertheless, William Anderson agreed that Carl Anderson in fact did ride occasionally on the road, and that was something William Anderson knew. He also said that although they did ride together on motorcycles that was:
“Mainly out around the river roads. There wasn’t too much of riding around the streets in Collinsville. Well, definitely not on the bitumen. I cannot remember that because I – I realise – we were always told to keep – keep off the bitumen by the police and all, yeah.”
He agreed when cross-examined by counsel for The Nominal Defendant that he was aware prior to the day of the accident that his son rode a motorcycle both on road and off road, and he said had given his son permission to use that motorcycle prior to that day; he swore that he had imposed restrictions which were:
“Particularly the day of the accident, he was not to ride it after night – after dark because the headlight didn’t work and to try to keep away from the streets.”
- The learned trial judge remarked that William Anderson had impressed the judge as a very honest witness, who found the case emotionally difficult, which the judge thought understandable because Carl Anderson was William Anderson’s only son, whom he had raised as a sole parent. The judge also concluded that William Anderson was quite clear in his evidence that Carl did not have his authority to ride the motorcycle on the roadway on the evening when the collision occurred, and that while he knew that occasionally his son did ride on roadways, he had said Carl was supposed to ride off road and push the motorcycle across roadways. The judge accepted as true the evidence that they had not ridden on a bitumen road together, and that he had not given permission to Carl Anderson to ride on public roads on that day. The judge therefore concluded that Carl Anderson did not have his father’s authority to ride the motorcycle at the time of the collision.
- Carl Anderson’s description of his father’s implied or begrudging permission to ride the motorcycle at the time of the collision is consistent with William Anderson’s description of belated attempts to keep Carl Anderson, a competent motorcycle rider, off public roads. William Anderson’s evidence in re-examination included that he had said that very day, when last speaking with Carl:
“You know where you’re supposed to be riding, Carl.”
That evidence describes permission or authority to use the bike where Carl knew he was supposed to be riding it, and not elsewhere. It is not necessarily inconsistent with Carl Anderson’s understanding, namely that because his father knew he rode the bike on public roads, apparently without reproof from his father, that Carl believed on reasonable grounds that he did so that day with his father’s authority.
- The position was complicated by the fact that William Anderson, who represented himself, did not cross-examine his son at all. Equally, it was not put to William Anderson, who gave evidence after Carl Anderson, that William Anderson had not told Carl Anderson to try to keep away from the streets, or had not told Carl Anderson that he was not to ride the bike after dark. Admittedly, the evidence that William Anderson had said:
“You know where you’re supposed to be riding, Carl.”;
was only given in re-examination, but William Anderson had not had put to him in cross-examination any express challenge to his evidence that he had imposed those two described restrictions on his son riding the bike. In those circumstances the learned judge was entitled to make both the finding about the honestly held belief by Carl Anderson that he had his father’s authority, and that finding that in fact he did not. They are findings about the understanding of a father and a teenaged son about conduct by the son of which the father was aware, and from which the father tried to dissuade the son. The learned judge heard both witnesses and both findings were open.
Was The Nominal Defendant’s claim extinguished?
- The learned trial judge held that, on the assumption that either or both of Carl Anderson or William Anderson had failed to establish the defence provided in s 4G of the 1936 Act, that any debt by those parties, with regard to any liabilities of The Nominal Defendant to Paul Kenny or Heather Brooker, would arise under the 1936 Act only when payment had been made to the claimant by The Nominal Defendant. The judge observed that by s 109 of the 1994 Act, the 1936 Act was repealed without reservation, but that there were specific transitional provisions in the 1994 Act. Those relevantly provided:
“104 Personal Injury Claims
(2)If personal injury arises out of a motor vehicle accident happening before the commencement of this Act, a claim for the personal injury must be dealt with as if this Act has not been enacted.
106 Nominal Defendant
(1)The Nominal Defendant under this Act succeeds to rights and liabilities of The Nominal Defendant under the former Act for personal injury arising out of a motor vehicle accident that happened before the commencement of this Act.”
The 1994 Act had provided that The Nominal Defendant was a body corporate, which might sue and be sued under the name Nominal Defendant, and the reference to the former Act was to the 1936 Act. The Nominal Defendant under the former Act is The Nominal Defendant (Queensland).
- Heather Brooker’s claim had been settled on 25 August 1998 for $110,000, and party and party costs, and the judge held that any debt regarding that liability arose only when payment had been made to Ms Brooker by The Nominal Defendant. Likewise, the right to claim a debt in respect of the judgment ultimately awarded to Paul Kenny arose after the 1936 Act was repealed, and the learned judge held that the inchoate right to claim a debt, depending on events that might or might not occur and which had not happened before the repeal of the Act, was extinguished by its repeal.
- The learned judge also held that the terms of s 60 of the 1994 Act, describing when The Nominal Defendant might recover as a debt costs reasonably incurred on a claim for personal injury involving an uninsured vehicle, had no relevant application. That was because the definition of “motor vehicle accident” in the 1994 Act meant that s 60 applied only to an action for debt arising when the personal injury was the result of a motor vehicle accident which occurred after the commencement of the 1994 Act. The Nominal Defendant has not challenged that last conclusion on this appeal. It has challenged the conclusion that its inchoate right to claim against Carl Anderson and Paul Anderson for a debt, if and when judgment was given against it in Paul Kenny’s claim, or if and when it settled Heather Brooker's, did not survive the repeal of the 1936 Act.
- The Nominal Defendant’s argument on the appeal was that the amount it paid, for example, to the claimant Paul Kenny did not become a debt to it, but a liability which The Nominal Defendant could recover using the processes available for recovery of a debt, and that that liability arose on the involvement of an uninsured motor vehicle in an accident causing bodily injury. The submission ran that the extent of that liability was subsequently quantified by negotiation or judicial decision, and that a seamless transition was intended from the 1936 Act to the 1994 Act, both for claimants and for The Nominal Defendant. In the alternative, the argument was that s 20 of the Acts Interpretation 1954 (Qld) could be pleaded in aid.
- That section provided:
“(2) The repeal or amendment of an Act does not –
- affect the previous operation of the Act or anything suffered, done or begun under the Act; or
- affect a right, privilege or liability acquired, accrued or incurred under the Act; or
- affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c)...
- The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced.., as if the repeal or amendment had not happened.”
- The learned judge held that the right to claim a debt did not arise before the 1936 Act was repealed, that the then inchoate right to claim a debt was extinguished, and that The Nominal Defendant therefore got no benefit from s 20. The Anderson respondents supported that approach on the appeal, submitting that The Nominal Defendant was in error in counter claiming in the Kenny and Anderson claims against it, for damages and costs not yet paid by it. But The Nominal Defendant’s pleadings claimed to recover against the respective defendants to its counter-claim the amount of any damage and costs paid to the relevant plaintiff in satisfaction of that plaintiff’s action. The Nominal Defendant had not pleaded that claim too early; it was seeking a judgment for an amount properly paid under s 4G of the 1936 Act, which it could recover as a debt against the party or parties named in its judgment on the counter-claim.
- On a narrow construction of “for”, not treating it as including the meaning of “in respect of”, The Nominal Defendant’s pleaded claims for indemnity demonstrate that its statutory rights of action against the Anderson defendants were not claims “for” personal injury arising out of a motor vehicle accident. But the claims by Mr Kenny, Ms Brooker, and by Carl Anderson against The Nominal Defendant for their personal injuries, and the pleaded circumstances of those claims, was the source of the claim for indemnity. To deal with those claims for personal injury, as if the 1994 Act had not been enacted and the 1936 Act remained in force, necessitated judgments or settlements that gave rise – if the 1936 Act was in force – to a claim for indemnity under that Act. It would not just be the provisions of the 1936 Act that gave the parties suffering personal injury a right to claim against The Nominal Defendant that would remain in force, if the 1994 Act had not been enacted; the provisions giving The Nominal Defendant its rights of indemnity (and contribution) would also be in force. To adjudicate on, or settle, the claims against The Nominal Defendant, without adjudicating upon The Nominal Defendant’s pleaded claims for indemnity, would not deal with the various claims for personal injury as if the 1994 Act had not been enacted and the 1936 Act not repealed. It would be to deal with those as if part only of the 1936 Act had been repealed.
- For that reason, even on a narrow construction of “for”, I respectfully consider the learned trial judge took an unduly narrow approach. The wider construction of s 104(2) which I prefer has the effect that the rights and liabilities of The Nominal Defendant under the 1936 Act, referred to s 106(1) of the 1994 Act, for personal injury arising out of motor vehicle accidents happening before the commencement of the 1994 Act, include The Nominal Defendant’s rights to claim for indemnity as if the 1994 Act had not been enacted.
- Authority can be found for construing “for” as meaning “in respect of”, and that wider construction of “for” in s 104(2) and in s 106(1) advances the construction urged by the appellant. That authority includes the remarks of Rowlatt J in IRC v St Lukes Hostel Trustees (Registered) (1930) 144 LT 50 at 51; the judgment of Roxburgh J in Heasman v Jordan  Ch 744;  3 All ER 101;  3 WLR 432; Board of Inland Revenue v Winston Herbert Edward Suite  AC 657 at 665, and Lovell O’Grady & James v FLAIEU of Australia (1978) 22 ALR 704 at 732. Accordingly, if the evidence had supported the findings contended for by The Nominal Defendant against either Anderson respondent, it would be entitled now to have and enforce judgment for a debt against the appropriate respondent.
Mr Kenny’s economic loss
- The Nominal Defendant submitted that the learned judge erred in not discounting Mr Kenny’s calculated pre-trial past economic loss, and in discounting his calculated future economic loss by only 20 per cent. The Nominal Defendant urged that both calculated sums should have been reduced by 25 per cent.
- Mr Kenny suffered a fractured right ankle, right femur, a severe head and brain injury, a fractured skull, hearing loss, and an injury to his spine, in the 1994 accident. Before it he had enjoyed playing sport and was apparently good at it, and had begun year 10 at the Collinsvale High School. He had performed poorly at school, and an occupational therapist’s opinion was that because of his educational performance prior to the 1994 injury, he would have been restricted to pursuing mainly manual and unskilled work. His brothers were employed in the mining industry and the opinion was given by at least two medical practitioners at the trial that, absent injury, Mr Kenny could have undertaken that same employment; he had apparently been keen to do so. But the 1994 accident left him with intellectual and memory difficulties, moderately impaired speech, and his ability to use language had been adversely affected. He also suffered a significant hearing loss in one ear.
- The past economic loss position was considerably complicated by the fact that in August 1997 he was involved in a second, quite significant, motor vehicle accident, suffering a crushed fracture of a lumbar vertebra and other injuries, and thereafter experiencing constant lower back pain which was easily aggravated. The orthopaedic injury he suffered in the 1997 accident limited his capacity for heavy manual work, had he otherwise been uninjured in 1994.
- The Nominal Defendant did not challenge the learned judge’s conclusion, expressed in these terms:
“I have concluded that Mr Kenny was made commercially unemployable by the 1994 motor vehicle accident which is the subject of the claim in this suit. Had he not suffered the injuries in 1994, he would most likely have taken up employment in the mining industry similar to that undertaken by his brothers, Stephen and Damian. His head injury precluded that. However the injuries he suffered in 1997 would have prevented his continuing in that type of employment at least for a time until that injury settled. Once the 1997 injury settled, he would have been able to undertake many different types of employment had it not been for the head injury suffered in 1994. There was no evidence that that 1997 injuries, absent the 1994 injuries, would have made him unemployable. However the 1997 injuries alone would have reduced his capacity for at least a time, to be gainfully employed. The medical evidence on the extent of that incapacity was not all consistent but did suggest that he would not have been able to work at all for some time and would thereafter have reduced working capacity.”
- The learned judge went on:
“ Thereafter, because of the effects of the back injury suffered in the 1997 accident, he would not have been able to undertake heavy manual work but would certainly have been able to work in other occupations, such as being a bar attendant, for a normal working life.”
- The learned judge then calculated both past and future economic loss on the basis of Mr Kenny’s working as a bar attendant, after a short period of working in the mines (until the 1997 accident). The Nominal Defendant challenges only the fact that the learned judge did not discount at all Mr Kenny’s notional employment as a bar attendant from 14 August 1998 until the date of judgment in the action. I respectfully agree with the submission that Mr Kenny’s notional employment in that eight year period should have been discounted to allow for the ordinary risks and exigencies of life.
- It simply seems unlikely that he would have experienced constant full-time employment. The learned judge did discount his future economic loss calculated by the judge, by 20 per cent to allow for contingencies, a figure The Nominal Defendant argues is too low. However, I accept the submission made for Mr Kenny that the learned judge began from a fairly conservative base, in calculating economic loss on what Mr Kenny would have earned as a bar attendant, and accordingly I would not disturb the 20 per cent reduction for future economic loss. I would reduce the past economic loss in the six years of notional bar employment by the same 20 per cent. The gross figure allowed by the learned judge for that notional employment was $160,186.15, of which 20 per cent is $32,037. The damages awarded should be reduced by that amount, by a further amount of $2,563, that being an appropriate reduction in past lost superannuation contributions, and by a reduction in interest on past economic loss of $21,626. The judgment sum should accordingly be reduced under this head by $56,226.
- The next ground of appeal referred to the second judgment by the learned trial judge, delivered on 27 October 2006, providing reasons for the costs orders made by the learned judge and the orders made for the cost of the administration of the estate of the successful plaintiffs. In Paul Kenny’s claim, that was an amount of $238,166, and in Carl Anderson’s an amount of $93,926.19. In Paul Kenny’s claim, the learned judge ordered that National Australia Trustees Ltd (“the NAT”) be appointed financial administrator to administer the monies to be paid to it on behalf of Paul Kenny. The judge ordered that after payment of various specified amounts to the Health Insurance Commission, Centrelink etc., that the amount of $238,166 be paid by The Nominal Defendant to Paul Kenny, together with the judgment sum ordered by the learned judge, of $879,181.68. In Carl Anderson’s claim the learned judge ordered that Trust Company of Australia Limited (“TCA”) be appointed financial administrator, and that in addition to the judgment sum (of an agreed amount of $408,892.40) that The Nominal Defendant pay Carl Anderson the sum of $93,926.19 on account of administration and management fees.
- The Nominal Defendant argued, on the appeal from the orders made in Mr Kenny’s claim, that ANZ Executors & Trustee Company Ltd (“ANZ”) had offered to provide the same services to Mr Kenny as those offered by NAT and for $96,031 less. It submitted that the charges to be imposed on a defendant should be no more than those of the lowest cost service provider for the relevant level of service, and that there had been no evidence which would support a finding that the services of NAT would be superior to those offered by ANZ.
- The learned judge had held, in the judgment delivered on 20 September 2006, that both Mr Kenny and Carl Anderson required a protection order because of their brain injuries, and that conclusion is not challenged. Nor is the learned judge’s sanction of the damages agreement reached between Carl Anderson and The Nominal Defendant. In the judgment delivered on 27 October 2006, the learned judge remarked that the High Court decision in Willett v Futcher (2005) 221 CLR 627 held that the costs of managing the damages award should properly be part of the damages awarded to the plaintiff in such a case, and that the High Court had also held that the amount to be allowed should be the amount assessed as allowing for remuneration and expenditures properly charged or incurred by the administrator of the fund, during the intended life of the fund. The judge thought that the High Court judgment implied that the trial court should determine the identity of the administrator and then allow the remuneration and expenses properly charged or incurred by that administrator, so long as those were reasonable and in accordance with the Queensland statute law.
- The judge was impressed with the proposal put forward by NAT and with an affidavit filed by a Mr Anthony Steele of that organisation. The judge accordingly thought it appropriate to appoint the NAT as the administrator, with the fees and charges sought by that entity.
- The appellant complains that the learned judge made no particular analysis of what its suggested administrator, ANZ, offered to the plaintiff. That is true, but the learned judge received written submissions on the matter. Those written submissions showed that ANZ calculated their costs of all fees, including funds management, at “approximately” $142,135, and NAT calculated its at $142,189, almost the same amount. The extra $95,977 to be charged by the NAT was for its “management expense ratio (MER)”, referring to the investment of the client’s fund. Counsel for Mr Kenny submitted that the ANZ assumed that 100 per cent of its fees were tax deductible, whereas the NAT only assumed that 70 per cent of its charges were; and if the ANZ were incorrect, its comparative cost would increase. Even so, it would be a smaller cost than the NAT’s. Counsel for Mr Kenny conceded that the NAT’s MER charges were the apparent difference between the two proposed administrators, but argued it was not clear whether Mr Kenny would receive profits from the fund net of ANZ’s fund management fees; and if so, ANZ was proposing that Mr Kenny pay the fees but not taking them in account.
- The comparative services offered were not the subject of oral evidence, and nor were the comparative costs and fees, hidden or otherwise. There is merit in the complaint by The Nominal Defendant that a significantly more expensive administrator was preferred, but that was on the basis of the affidavit evidence of Mr Steele. The learned judge was entitled to act on the evidence; I am not prepared to say the judge was in error when the issues now debated were not explored in any oral evidence or submission.
- Regarding the appointment of TCA for Mr Anderson, who were more expensive than the proposal by ANZ for him, the appointed administrator does have an office in Townsville. Senior Counsel for Carl Anderson submitted that that made that office much more readily accessible to Mr Anderson, and given the estimated long period in which the order would persist, I agree that was a relevant matter supporting the award in Mr Anderson’s case. The result may have been different in Paul Kenny’s matter had there been more evidence, particularly oral, about the services to be provided and their costing. On the written material, The Nominal Defendant has not shown that the learned judge erred in making either original order, as to the amount to be awarded for administration costs. I agree with the submissions that it is sufficient if a court makes an award of administration costs, without naming an administrator; but this Court was not asked to amend the orders made by deleting the named administrator.
- Finally, because I would reduce the judgment sum by $56,226, it is appropriate to reduce the administration costs by a similar percentage (6.4 per cent). That reduces the administration costs by $15,243, to $222,923.
- The last matter of complaint was an order that Paul Kenny be awarded his costs, both of the claim and counter-claim, including reserved costs, if any, on an indemnity basis. That order was made because on 27 March 1997 an offer to settle was made, in the amount of $410,000 plus costs, which was rejected by The Nominal Defendant on 7 May 1997. On 16 February 2006 a formal offer to settle in the amount of $400,000 was made and rejected. Mr Kenny considerably bettered those offers in the sum ordered by the learned trial judge as damages, namely $879,181.68, and will still do so even when that is reduced (by $56,226) to $822,955.68. The Nominal Defendant has submitted that the 1997 offer was not in accordance with Order 26 of the Supreme Court Rules 1900 (Qld), in that the offer did not contain a statement that it was made in accordance with that order, and nor did it state it was open for acceptance for a specified period of not less than 14 days, as was required by O 26 r4(1). The Nominal Defendant also submitted that Mr Kenny would have been unable to accept the offer (a sanction being necessary), and that it is unlikely this Court would have sanctioned a settlement in that amount. A sanction would have been necessary, the appellant argued, by reason of s 59(1) of the Public Trustee Act 1978 (Qld), since Mr Kenny was certainly a person with an impaired capacity. That was his case.
- I agree with the learned trial judge that it was arguable the plaintiff’s offer would have been capable of sanction at the time, because there were problems with his case. There was the issue of whether he was the rider of the motorcycle, whether he wore a helmet, and whether it was correctly secured. There was the fact that only three helmets were found, and the possible evidence of Mr Moss. However, I differ from the learned trial judge in that I consider since Mr Kenny’s offer did not purport to be made under Order 26, and was not made in accordance with that order, Mr Kenny should not receive the benefit of the order. That does not apply to the offer of 16 February 2006 because for the reasons given, that the offer was capable of being approved by the court or the Public Trustee. Apart from the problems with proof of liability, Mr Kenny faced difficulties with proof of economic loss, the need for future care, and the level of general damages. He could have been awarded less under each head; The Nominal Defendant contended at the trial that his highest award would be $403,233.10.
- Accordingly, I would allow the appeal in Appeal No 8945/06 in action S222/02, by reducing the judgment sum of $879,181.68 ordered to be paid to the plaintiff to an amount of $822,955.68, and reducing the further amount ordered to be paid for administration and management fees from $238,165 to $222,923. In Appeal No 10170 of 2006, in matter S222/02, I would allow the appeal against the orders made on 27 October 2006, to the extent of amending the order numbered 8 by the addition of the words “on and from 1 March 2006 and before that on the standard basis”.
- I would order that in those appeals the respondent Paul Joseph Kenny pay the costs of the appellant The Nominal Defendant of and incidental to the appeal, to be assessed on the standard basis. I would order that in appeals numbered 8946/06 and 10169/06, that those appeals be dismissed and that the appellant The Nominal Defendant pay the costs of the respondents Carl Robert Anderson and William John Anderson of and incidental to those appeals, to be assessed on the standard basis.
- MACKENZIE J: I have had the opportunity to read Jerrard JA’s reasons in which the relevant facts, issues and legislative framework are set out sufficiently, and the President’s additional reasons. It is convenient to adopt the same headings as Jerrard JA’s judgment employs.
The helmet issue
- The learned trial judge concluded that, on the balance of probabilities, both the first and third respondents were wearing motorcycle helmets at the time of the collision. The recollections of each of them relating to the event were so seriously affected by the effects of the collision that neither was able to say whether they were wearing them at the time of the accident. There was some evidence from the second respondent, (the third respondent’s father), tending to suggest that both the first and third respondents had helmets before they set out, but he did not actually see them leaving because he had left the premises earlier. The first respondent’s recollection extended to both the third respondent and himself having helmets earlier in the day. He remembers sitting on a helmet at the entry point to the locality where they had gone to ride motorbikes while waiting for the third respondent, who was riding on his own, to return.
- There was evidence from Mr Hogan, formerly a Senior Constable, who attended the scene. When he arrived it was dark. To the best of his recollection, neither the first nor third respondents were wearing helmets when he arrived. It was common ground that the people on the other motorcycle were both wearing helmets and that only three helmets were located. The problem with this evidence is that no evidence was elicited as to the extent of any search made to locate any other helmet.
- There were also statements by a girl, 13 at the time, tendered under s 92 of the Evidence Act 1997 (Qld). One, recorded in the police officer’s notebook, said that the first respondent did not have a helmet on, but the statement was not entirely clear as to whether her observation related before or after the collision. The formal statement signed by the witness is more consistent with the latter.
- Finally there was evidence from Quinton Moss who had been riding with the first and third respondents during the day and was riding some distance behind them at the time of the collision. He was not asked to recall details of the accident until some years after it occurred. The effect of his evidence in cross-examination was that he did not think that the first respondent had a helmet on, but was “pretty sure” the third respondent did. This was consistent with what he told an insurance investigator.
- In re-examination he said he knew that when they were riding at a creek earlier in the day, the first respondent did not have a helmet on. He concluded by saying, “so I don’t think he plucked one out of the gum tree and put it on his head.” The reasons for judgment only refer to the passage from cross-examination. The sarcasm in the answer in re-examination suggests that the witness was not inclined to accept that the first respondent could have been wearing a helmet at the time.
- But the real difficulty in any event is that there is evidence both ways on the question. It is complicated to some extent by her Honour’s earlier observation that Mr Moss “appeared to be doing his honest best to recall what happened on that day”. But the real difficulty for the appellant is that his evidence does not quite reach a satisfying level of definiteness on the subject and there was evidence both ways on the question. The learned trial judge ultimately had the advantage of seeing the respective witnesses and it is difficult on appeal to overturn the finding of fact in the circumstances.
- Her finding that the helmet was properly secured by a chin strap was also contested. The principal focus of this argument was that there was no evidence of injury to the first respondent’s chin. The learned trial judge’s conclusion on this was in the following terms:
“Although there may have been chin injuries if the helmets had been properly fastened, I am not satisfied that they did not have their helmets fastened as required.”
The finding seems very carefully worded to reflect that, while there may have been chin injuries if the helmets had been properly fastened, the onus of proving that they had not, had not been discharged. Although it is not expressly stated in the reasons, it would not have been surprising if an element in that conclusion was whether a person who was wearing a helmet would wear it unfastened. There was also the fact that the third respondent similarly did not suffer injuries to the chin in circumstances where it was least accepted that he was wearing a helmet. The matter was, to my mind, very finely balanced but I am not ultimately persuaded that there is any basis upon which the findings of the learned trial judge with regard to the helmet can be reversed.
- The issue in this ground of appeal is the learned trial judge’s finding of fact that the headlight of the other motorcycle involved in the collision, driven by the third respondent’s cousin, Clinton Anderson, was not illuminated. I respectfully agree with Jerrard JA’s analysis of the evidence and wish to add nothing to it. The evidence did not enable an inference to be drawn whether the light was not illuminated. It was common ground that the light on the third respondent’s motorcycle was inoperable and was therefore not illuminated.
- I agree with Jerrard JA’s conclusion as to apportionment. The factor that persuades me to that conclusion is that Clinton Anderson was emerging from private property on to a roadway and it was incumbent upon him to be certain that there was no oncoming traffic on the roadway before he entered it. Since this court is not merely interfering with apportionment made by the learned trial judge but exercising the function of apportionment afresh because of the finding of fact that cannot be sustained, the fact that the apportionment remains the same is merely a reflection of a view that that is the appropriate apportionment in the circumstances.
Authority to ride
- This ground is concerned with the right to recover the judgment sum from the third respondent’s father, the owner of the unregistered motorcycle on which the third respondent was riding at the time of the accident, and from the third respondent. The argument centres on s 4G(1)(b) of the Motor Vehicles Insurance Act 1936 (Qld), which relevantly allows recovery in the following circumstances:
“(b)If the claim was made or the judgment was recovered in respect of an uninsured motor vehicle, from the person who, at the time of the occurrence out of which such claim arose or in respect of which such judgment was recovered, was the owner of the motor vehicle, or where at the time of such occurrence some other person was driving the motor vehicle, from the owner and the driver jointly or from either of them severally; or
(a)It shall be a sufficient defence in any action brought under this subsection against the owner (whether severally or jointly with the driver) if he establishes to the satisfaction of the court that, at the time of the occurrence, some other person was driving the motor vehicle without his authority;
(b)It shall be a sufficient defence in any action brought under this subsection against the driver (whether severally or jointly with the owner) if he establishes to the satisfaction of the court that, at the time of the occurrence, he was driving the motor vehicle with the authority of the owner or had reasonable grounds for believing and did in fact believe that he had such authority, and that he had reasonable grounds for believing and did in fact believe that the motor vehicle was insured under this Act.”
- In the case of the third respondent’s father, therefore, he could successfully defend the Nominal Defendant’s claim by proof that the third respondent was riding the motorcycle without his authority. In the case of the third respondent, he could defend the Nominal Defendant’s claim by establishing:
- either that he was driving the motorcycle with the authority of his father; or
- that he had reasonable grounds for believing and did in fact believe that he had his father’s authority; and in addition
- that he had reasonable grounds for believing and did in fact believe that the motorcycle was insured under the Motor Vehicles Insurance Act 1936.
- Since the second respondent was unrepresented, his evidence-in-chief and re-examination were facilitated by the learned trial judge. In those phases of his evidence and in cross-examination there is a degree of fluidity which requires his evidence to be closely read to enable its overall effect to be ascertained. It is apparent from discussion during the evidence and perhaps elsewhere in the trial that there was some concern over the problems of a self-represented litigant in a case of some complexity and risk to his interests.
- The defences relied on by the second and third respondents carried an onus to prove them on the balance of probabilities. The appellant argued that the finding that the third respondent believed he had the second respondent’s authority to ride on public roadways was necessarily inconsistent with the finding that the second respondent had not given such permission. It is not helpful to consider that as an abstract question. The question is whether, in all the circumstances of the case, the second respondent has proved that he did not authorise the third respondent to ride the motorcycle in circumstances where it was required to be insured.
- I have come to the conclusion that the finding that the third respondent believed that he had the authority of the second respondent to ride the motorcycle and the finding that the second respondent had not given his authority are not necessarily inconsistent. There was evidence that the second respondent was aware that, on occasions, the third respondent had ridden the motorcycle on roads. However the evidence does not reach a level where it can be safely asserted that he condoned it and that anything he said about the practice was merely paying lip service to any obligation not to allow the third respondent to ride the motorcycle on a road. The possibility of making a finding that the third respondent believed he had authority to ride the motorcycle was open. It may also be observed that where a belief is involved in one part of the equation, the capacity for misinterpretation by one person of what was actually in the mind of another person is clearly a relevant factor that may lead to a conclusion being drawn about that other person’s state of mind that is wrong, but not unreasonable. This in my view is one of those cases.
- It may be accepted that a person of the age of the third respondent may have had a propensity not to abide by rules laid down by a parent. If there were disobedience of conditions, imposed for the purpose of ensuring an uninsured motorcycle was not ridden in circumstances where it was required to be insured, the proper conclusion would be that it was ridden without authority. But breach of a condition such as not to ride it after dark would be irrelevant if authority to ride it in circumstances in which it was required to be insured had been given.
- So far as the third respondent’s need to establish a reasonable belief that the motorcycle was registered is concerned, I agree with Jerrard JA’s analysis.
- With respect to the evidence of the second respondent, the appellant Nominal Defendant must establish that it was not reasonably open to the learned trial judge to find that he had discharged the onus of proving that the motorcycle was being ridden without his authority in the relevant sense at the time of the accident. There is a strong and unequivocal finding that the second respondent was a credible witness, as to which the trial judge’s advantages are well accepted in the absence of clear reasons to think that it was wrongly made. In that regard, the very substantial difficulty faced by the appellant is that while, taken in isolation, some answers given by the second respondent may suggest that he had reason to believe that the third respondent sometimes rode the motorcycle on roads, the theme that he kept coming back to was that his instruction, perhaps based on a long standing expectation, expressed to his son (who in any event should not have been riding on roads since he was unlicensed and of a young age), was that it was not to be ridden on roads.
- In my view it cannot be established that, in a case where the witness was accepted as truthful and it cannot be said that the learned trial judge has plainly erred or misused her advantage as trial judge, the finding that the motorcycle was being ridden without the second respondent’s authority is unsustainable.
- One other matter should be mentioned. It is mentioned essentially so that it is not thought that it has been overlooked. It should be observed at the outset that it may be questionable whether, until after the accident, the second respondent actually turned his mind to the issue of whether the motorcycle was unregistered, having regard to his evidence generally about the status of the motorcycle. In paragraph  of her reasons, the learned trial judge refers to the second respondent having a reasonable belief (scil, at the time of the accident) that the motorcycle was insured. That may have been a relevant consideration under the Motor Accident Insurance Act 1994 (Qld), but was not one under the Motor Vehicles Insurance Act 1936. The transitional provision in s 104 of the former makes the latter the applicable Act.
- Although the belief that the motorcycle was registered is treated as a basis for a defence in the second respondent’s case, there is a clear and positive finding as well that the second respondent had not given permission to the third respondent to ride on public roads on that day. The finding relating to belief that the motorcycle was insured does not impinge on the finding as to authority; nor was it a ground of appeal that it did. In the circumstances it is unnecessary to examine that finding further.
Was the Nominal Defendant’s claim extinguished?
- I do not wish to add anything to Jerrard JA’s analysis, with which I agree.
Mr Kenny’s economic loss
- I agree with Jerrard JA’s reasons and his conclusion on this issue.
- I agree with Jerrard JA’s reasons and his conclusion on this issue.
- I agree with the approach to this issue taken by Jerrard JA and the President in her additional reasons. As the matter stood at the time when the original offer to settle was made, it was far from clear what the outcome would be and, in my view, had advice from counsel which adverted to and adequately analysed the significant uncertainties concerning the outcome been before a judge on an application to sanction the settlement, there would have been, in my view, little doubt that the judge would have sanctioned it. As the matter stands now, findings of fact have been made and the first respondent has received a substantially better outcome than that in the offer. However, that cannot be used as a reason for suggesting that, as the matter was at the time the original offer was made, settlement on that basis would not have been sanctioned. I agree with the conclusions reached that it was open to award indemnity costs.
- I agree with the orders proposed by the President.
 Acts Interpretation Act 1954 (Qld), s 14A.
  1 Qd R 258, 265.
 The term "costs on an indemnity basis" is not a term used in the SCR but is used in the SCR's successor, the Uniform Civil Procedure Rules.
 A body corporate established under the Motor Accident Insurance Act 1994 (Qld).
 At AR 549.
 At AR 121.
 At AR 86.
 By s 38(1) of the Traffic Regulations 1962 (Qld).
 At Reasons for Judgment  at AR 660.
 At AR 63.
 Those findings are at  of the Reasons for Judgment.
 At AR 194.
 At AR 194.
 At AR 332.
 At AR 333.
 At AR 342.
 At  at AR 677.
 At AR 346.
 Under UCPR 98 or The Public Trustee Act 1978, s 59.
- Published Case Name:
Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors
- Shortened Case Name:
Kenny v Nominal Defendant
 QCA 185
McMurdo P, Jerrard JA, Mackenzie J
05 Jun 2007
No Litigation History