Theden v Nominal Defendant[2004] QSC 310

SUPREME COURT OF QUEENSLAND 

1. By this action the plaintiffs claim damages for injuries and loss suffered which they allege was caused by the negligence of the driver of an unidentified motor vehicle and by the negligence of the other defendants or any of them. The quantum of the damages claimed by the second plaintiff has been agreed upon, but the damages of the first plaintiff need to be assessed.

Background facts

2. At approximately 10.00 am on Friday, 9 August 1996 the first plaintiff was driving a hired Toyota Landcruiser in a north bound direction along Endeavour Valley Road,^[1] approximately 35 km north of Cooktown.  The road is a designated State road which connects Cooktown and the Hopevale Aboriginal community and it is also a link road to the Peninsula Development Road.  The second plaintiff was a passenger in the vehicle.  As a result of the first plaintiff losing control of the motor vehicle it left the roadway and overturned.  The plaintiffs were injured as a consequence of this.

3. The road in question was of gravel construction and had recently been re-sheeted. It was in good condition as appears from photographs taken on the day of the incident (ex 6). These photographs confirm the absence of corrugation and potholes and depict the presence of some loose gravel which had been pushed to the edge of the trafficable surface.

4. The weather was overcast with some light rain falling in this area during the course of the plaintiffs’ journey from Cooktown. This required the occasional use of the windscreen wipers.^[2]  One consequence of the light rain was that there was an absence of dust which according to Mr Richards was usually thrown up by the passing vehicles.^[3]  This evidence concerning the weather conditions is preferred to that accepted by Dr Grigg in his report, ex 18  at pp 8-9.

5. The incident occurred on a crest at the approaches to a feature known as Pawpaw Gully. The approach in a northbound direction is described by Mr Brown in ex 10 as consisting of a sweeping curve to the right leading to a crest “located 76 m from the start of the curve. Beyond the crest the curving road falls steeply (at about 14%falling grade) for a vertical drop of 8.0 m to the creek crossing (culvert) which is about 16 m beyond the end of the horizontal curve.” The northbound approach alignment made the presence of the gully difficult to gauge until a vehicle was close to the crest. Importantly also, the sight line was limited such as that it was not possible to see whether there was any oncoming vehicle in the dip until either vehicle was close to the crest. The stopping sight line distance was calculated by expert witnesses to be between 39-41 metres.^[4]

6. The first plaintiff alleges that as the Landcruiser approached that crest she was confronted by an oncoming red coloured sedan travelling substantially on its incorrect side of the roadway such that the vehicles would have collided if the first plaintiff had not taken evasive action. In taking evasive action, the first plaintiff lost control of the Landcruiser causing it to cross, and then leave, the roadway on the southbound side before overturning and coming to rest on its wheels. The plaintiffs’ injuries were sustained as a result of the overturning of the vehicle.

7. No issue is taken about the existence of the red motor sedan. Such a vehicle was seen in the vicinity by other persons. The Nominal Defendant concedes that the plaintiffs have satisfied the requirement of s 37 of the Motor Accident Insurance Act 1994.

8. The plaintiff was an experienced driver. She has held driving licences, including a truck driving licence, for over 20 years. She was an experienced driver on country roads using 4 wheel drive vehicles.^[5]  She and her husband frequently went on driving tours in outback areas of Australia.  This included driving on the Birdsville track and in remote areas of Western Australia as evidenced in the video tape. (ex 3).  On the day in question their plans were to drive from Cooktown to Laura visiting some cave paintings on the way.  The distance to be travelled was quite short and they were in no hurry to complete the journey.  The first plaintiff engaged the four wheel drive mode when the vehicle first encountered the gravel section of road a short distance north of Cooktown.  The designated speed limit for the road was 100 kph.

9. It is common ground that there were no road signs giving warning of the curve or the dip or advising of appropriate speed at the time of this incident. The only traffic guidance elements in place were sets of guide posts located considerable distances apart on the northern side of the crest and further sets in the gully.

10. The first plaintiff gave evidence that she only became aware of the red sedan when it emerged suddenly in front of her. She gave her position on the road at that time as being on the correct side of the roadway with her driver’s side wheels close to the imaginary centre line.^[6]  She explained that this was the position she usually adopted when travelling on unsealed roads.^[7]  She could not recall whether she was aware that she was approaching a curve or a dip.^[8]  She stated that the position of the red sedan was in the middle of the imaginary centre line,^[9] a little bit to the right of her vehicle.^[10]  In response to a suggestion that she was reconstructing rather than recalling the approach of the other vehicle the first plaintiff claimed the position of the other vehicle was “vivid in her memory”.^[11]

11. The second plaintiff gave the position of the Landcruiser as “between the imaginary middle centre line and the left edge, somewhere in the middle”.^[12]  He gave the position of the red sedan as “straddling the centre line”.^[13]

12. The first plaintiff could not remember at what speed she was travelling when she first saw the red sedan. In cross-examination it was suggested she was travelling at 90 kph but she disputed that in the following exchange:-

“…having regard to your practice, that you would have been travelling at a speed in the order of 90 kilometres per hour in a 100 kilometre speed zone such as this was? – I don’t think so.

And why don’t you think so?—Because the road condition was not – I wouldn’t have travelled on this – or with that speed on that road with – even with the saying 100 is permitted, that doesn’t say I would have driven close to that speed limit.”^[14]

13. She later agreed that she was proceeding in a manner appropriate for the conditions and added “there was no reason to push it because it was leisure time – we were under no hurry – or in no hurry”.^[15]

14. The second plaintiff confirmed that the vehicle was travelling slowly.^[16]  When asked to give an estimate of speed at the time of the incident he said:-

“I didn’t read the speedometer but it was certainly not a high speed it was levelly speed.

…I would say 40, 50 kilometres per hour.”^[17]

15. In cross-examination he stated that the speed at which the first plaintiff drove depended on the conditions of the road saying “there were stretches which were just straight and at that time, [the first plaintiff] was driving 60, 70 but not faster and then there were other stretches where there were curves and she was driving 40, 50.”^[18]  He estimated their speed to be 50 kph at the time of the incident.^[19]  Neither plaintiff could give an estimate of the speed of the red sedan which is understandable given the limited opportunity to observe it and the apparent need to take immediate evasive action.  The second plaintiff describes the red sedan as having “suddenly came out of nowhere”^[20] and as “travelling fast”.^[21]

16. The first plaintiff stated that she avoided the other vehicle by swerving to her left and at the same time braking, though the braking was not hard. She described the loss of the control of the vehicle in these terms:-

“---I recall one thing.  I steered to the left first --- came too close to the loose gravel, steered to the right, and then I lost control over the car.

All right? – And one reason why I lost control, the cut – the road was not straight any more.  It had a slight slope.

Mmm? – so, it – it went down, and that of course made it even harder to keep control over the car.”^[22]

In cross-examination she was unable to describe the degree of swerve with precision though she did recall a swerve to the left.^[23]

17. The second plaintiff expressed the view that if there had been no evasive action there would have been a collision. He described the evasive action as follows;-

“What happened? – I remember it was all very suddenly, and there was not much time to think about what to do.  So, my wife pulled our car to the left and I recall she came towards to the left – so she corrected the direction to the right again, and after that it – it went downhill and our car started sliding and turning around.

Right.  As she pulled to the left, did you notice anything ahead of you? – There was an embankment.

Yes? – Yeah.  And the gravel, yeah.

And do you recall whether she actually entered the collection of gravel on the left-hand side of the roadway? – Yes.  The left wheels, yeah.

All right? – the left wheels came – drove through the gravel.”^[24]

In cross-examination the second plaintiff accepted that there was an emergency turn to the left followed by an emergency turn to the right^[25] and that the vehicle turned and was skidding sideways after the right turn correction.^[26]

18. The only marks on the roadway which are accepted as having been made by the plaintiffs’ vehicle are those depicted in photographs made by police officers on the day of the incident. Those photographs are ex 6A-L. Those photographs have been subject to close scrutiny by various expert witnesses particularly Mr Brown and Dr Grigg who gave evidence before me. Each of the witnesses have sought to extrapolate from those marks the path of the plaintiffs’ vehicle prior to and at the time of the first plaintiff’s sighting the red sedan.

19. Before turning to the expert evidence I need to comment upon the observations made by Const. Osborne who, with Const Macfarlane, attended the accident scene. Const Osborne interviewed Mr Theden but his record of that interview and the diagram he prepared of the scene have been lost or destroyed. The police officers attempted to take photographs when they first arrived at the scene but found that they had no film. The photographs which have been tended, ex 6, were taken some hours later after film had been obtained from Cooktown. In the meantime, the ordinary flow of traffic had crossed over that section of the roadway. The flow of traffic was estimated by witnesses at 50 vehicles per day but the official count was 300 vehicles per day.^[27]  Const Osborne estimated that the intrusion of loose gravel onto the trafficable surface of the roadway measured approximately “a metre to a metre and a half”.^[28]

20. The detailed description of the approach to the site of the incident is set out in the expert reports. It is common ground that the road characteristics in respect of its horizontal and vertical curves (the crest and the dip) fell below the standards required for road construction in accordance with the relevant Australian and Queensland Standards. The combination of these deficiencies in the opinion of Mr Brown made the road “hazardous”.^[29]

21. One consequence of this road geometry was that the stopping sight distance was significantly reduced. That distance is made up of the distance travelled while the driver reacts to the presence of an object and the actual braking distance. Adopting a reaction time of 1.5 seconds, the stopping distance for a vehicle travelling at 100 kilometres per hour (“kph”) on a gravel surface is 150 m. The actual stopping sight line for a north bound vehicle at the incident was measured by Mr Brown to be 39 m and by Dr Grigg to be 41 m. The difference is immaterial. It is relevant to keep in mind that at 50 kph, the only estimate of speed for the plaintiff’s vehicle, a vehicle travels at 13.6 m per second.^[30]

22. The experts who gave evidence analysed the tyre marks in great detail but reached different conclusions about the line of travel of the plaintiff’s vehicle prior to the point where the tyre marks commenced. The relevant marks are well illustrated in the photographs taken by the investigating police officers (ex 6). The marks are continuous and the road distance between where they commence and where they left the road is 141 m.^[31]  The actual length of the marks are somewhat longer with the left side tyre leaving a mark of 55 m.^[32] 

23. The marks are consistent with the plaintiff’s vehicle yawing to its right and rotating. Mr. Brown’s conclusion that when the vehicle left the roadway it was travelling sideways is consistent with the recollection of the second plaintiff. It differs slightly from Dr Grigg’s conclusion that as the vehicle left the roadway it was travelling in a forward direction. However, nothing turns on this difference.

24. During the trial much questioning was directed to establishing where, for practical purposes, was the centre line of the trafficable area of the roadway. The trafficable area of a road such as this cannot be measured with accuracy. The width of the graded areas varies along its length. As vehicles pass over the road gravel is forced to the edge of the surface. This is more pronounced on curves. The table train at the edge of the trafficable surface is not uniform, so there is no common starting point form which the measurement can commence. The only reliable measuring points at the time of this incident were the guide posts which had been located after the road was re-sheeted in March 1996. The distance between the guide posts was measured at 8 m, but a driver wishing to avoid loose gravel at the edges would perceive the trafficable surface to be much less. For Mr Brown it was the guide posts that provided the basis for determining the imaginary centre line. On that basis the commencement of the tyre marks on the road surface was 600 mm on the north bound side of that imaginary centre line. At the point where the marks commenced the vehicle was about to enter a yawing movement as a consequence of it having been turned to the right. The orientation of the vehicle at this time, according to Mr. Brown’s interpretation of the marks, was that it was at an angle of 4 degrees to the centre line. His interpretation was based upon a photo-grametric survey which had been prepared from the police photographs. It was not possible to derive the angle directly from the photographs because of the perspective from which the photograph was taken.^[33] 

25. Mr Brown expressed the opinion that the commencing point of the mark was made by the vehicle’s rear wheel^[34] and it was made in the attempted recovery phase of the evasive action described by the first plaintiff.  He said that if “there had been any violent or rapid turn to the left it would have left marks on the roadway”.^[35]  The absence of any marks on the roadway identifiable with an initial evasive action led Mr Brown to conclude that the turn to the left was not “a hard turn”.^[36]

26. In summary, Mr Brown reasoned that the evasion occurred close to the commencement of the established marks because of their proximity to the crest and that the time lapse between reaction to the oncoming vehicle and the commencement of the marks was approximately one second in which time the plaintiff’s vehicle travelled about 13 m.^[37]  He rejected as “improbable” suggestions that the evasive action may have commenced further to the south of the crest on the basis that an experienced driver travelling north would not cut that corner so close to the crest.^[38]

27. Dr Grigg was retained on behalf of the first defendant. He first inspected the scene some six years after the incident. This made necessary an attempt to reproduce the position of the tyre marks by paint markings using the photographs ex 6 and the location of some identifiable vegetation. By this time the road surface had undergone changes and had obviously been regraded. Consequently his fixing of a notional centre line by reference to the edge of the trafficable surface was attended by some uncertainty. The variation in the width so measured is illustrated in Table 3 of his report (ex 18). He determined distances using a measuring wheel and recorded the width of the roadway as being the distance between the embankments on either side.^[39]

28. With due respect to the efforts of both experts, it seems to me that in such locations the perception a driver would have of the road is not something that can be reduced to line but is rather a matter of general appreciation. On unsealed rural roads, the centre of the trafficable area could be a single wheel rut or, as in this instance, a broad area between nondescript wheel marks as appears in photograph ex 6B. Mr Richards who was the first person on the scene after the incident observed that the skid marks were on the northbound side of the road.^[40]  This impression by an observer at the time is likely to be more accurate than measurements taken from different, and perhaps irrelevant, features.

29. As a result of a variety of calculations Dr Grigg concluded that when the plaintiffs’ vehicle made the marks on the roadway its speed would not have exceeded 70 kph nor could it have been less than 40 kph.^[41]  He also concluded that there was no use of brakes during the time that the marks were made.^[42]  Relying on assumptions as to the Landcruiser’s speed, the relative position of the centre line, and that the marks resulted from the driver’s perception of a need to avoid the western embankment, Dr Grigg concluded that the plaintiffs’ vehicle must have been on its incorrect side of the road when commencing its evasion of the unidentified vehicle.  In his report he produced Figures 1 and 2, illustrating two possible paths for the plaintiffs’ vehicle.  He stated that these were “possible paths” rather than “probable paths”.^[43]

30. The experts did not agree on the angles which the tyre marks bore to the imaginary centre line. If the proper angle was 4 degrees as suggested by Mr Brown the vehicle would have crossed the imaginary centre line 8.6 m before the commencement of the mark. He concluded however that this was indicative of the vehicle travelling adjacent to the centre line before the mark was made.

31. The adoption of the angle between the tyre mark and the centre line to draw conclusions as to the earlier path of the vehicle is, in my view, courting the risk of error. The commencement of the tyre mark is the result principally of a steering action which would have been taken by the driver only a short distance before the mark was made. The relevant factors determining this distance are speed, grip on the road surface, and reaction time.^[44]  The distance was given as a couple of “wheel base lengths” which Dr Grigg estimated to be approximately 7 m.  The distance a vehicle travels with no marks being left could have been even longer if the vehicle was under active steering.^[45]

32. The position of the vehicle on the roadway at a point even 10 or 20 m prior to the commencement of the marks depends on a number of variables. Any attempt to trace the vehicle path would, in the absence of reliable evidence as to speed reaction time and steering angles, be simply speculative. Nor could one expect occupants of the vehicle, reacting to an emergency situation, to have such a clear and accurate account of steering and braking attempts such as would inform the scientific approach adopted by the expert witnesses. The difficulty is that whilst the marks provide objective evidence upon which the experts can work, those marks are merely the end of an attempted recovery action following a change in driving conditions. In this regard I accept the evidence of Mr Brown that the marks on the roadway were made as part of a recovery action from an initial evasive action. I accept as more likely that the plaintiff’s initial reaction to steer to the left was quickly replaced with an attempt to recover from a danger of losing control in loose gravel or the threat of going off the road. The respective conclusions reached by the experts about the prior line of travel are really no more than possibilities based on their assessment of relative likelihood, which inevitably, must be based on assumptions. That is not to denigrate the expertise of either expert but is simply a comment on the lack of objective evidence upon which realistic conclusions can be reached about the path of the plaintiffs’ vehicle before its loss of control. There is simply no objective evidence linking the recovery attempt to the events leading to the loss of control. As a consequence the resolution of the issue as to why the initial movement occurred depends upon my assessment of the plaintiffs and the reliability of their evidence, having regard to the conclusions that can be reasonably drawn from the scientific approach undertaken by the experts.

33. In this regard, the first plaintiff impressed me as a responsible person who was well aware of the difficulties and dangers of driving on gravel roads in remote areas. Her experience, to which I have earlier referred, would have meant that she had the capacity to handle the prevailing road conditions and the experience to know that sight lines and road alignments can change unexpectedly. I accept her evidence that she was close to the imaginary centre line of the roadway when she approached the crest, and that she was unaware of the extent of the dip on the other side of the crest. In the absence of any indication of the steepness of the dip this was an entirely appropriate position for her to adopt on the roadway.

34. Although the first plaintiff cannot recall the speed at which she was travelling there is no evidence to suggest that it was in any way excessive. Even the upper range given by Dr Grigg would be appropriate if the conditions did not include the hazards of crests and curve that significantly reduced the sight lines. The only direct evidence of speed comes from Mr Theden whose assessment was that the speed of the vehicle varied from time to time conformably to the conditions. His estimate of the speed as being 50-60 kph would not be seen to be unreasonable. Mr Theden was particularly challenged because of his relationship with the first plaintiff and the fact that he himself is a claimant of damages. I was properly reminded of the obligation to scrutinise with particular care the evidence of both plaintiffs when the unknown driver is unable to be called to give evidence.^[46]  Mr Theden was particularly challenged as to his recollection because diagrams attached to a Notice of Accident form (ex 8) and a Claim form (ex 9) were inaccurate.  I accept that when completing the first of these forms Mr Theden was under a lot of stress and in the other case it is not clear whether the need for accuracy was made known to him when the document was prepared.  Although Mr Theden would put the plaintiff’s vehicle further to the left of the carriageway I am satisfied he did not consciously exaggerate the evidence to favour his wife’s claim.  His own claim would be assured by the finding of some negligence on the part of any of the defendants.

35. I am satisfied that when the plaintiff first saw the unidentified motor vehicle she was travelling on her correct side of the carriageway adjacent to the centre line at a safe speed in accordance with her perception of the road conditions. I find, relying upon her evidence and that of her husband, that when the unidentified vehicle became visible over the crest it was travelling in the centre of the roadway so as to be straddling an imaginary centre line. As the driver of that vehicle was travelling up the steep incline he/she ought to have been aware of the crest and the fact that the sight line was thus limited. I find that the unidentified vehicle was travelling at a speed which, whilst not necessarily exceeding the speed limit, was excessive for the available sight line.

36. I accept that the first plaintiff, to avoid an imminent collision between her vehicle and the unidentified vehicle, turned her vehicle to the left and then to the right and in so doing lost control of it. I find that her response was a reasonable and foreseeable consequence of the unidentified vehicle travelling in the middle of the carriageway in circumstances of limited sight line. I do not accept the suggestion that the loss of control of the plaintiff’s vehicle was a consequence of her cutting across the curve or of her seeking to avoid collision with the embankment. If the plaintiff’s vehicle had been in the position shown in either Fig 1 or Fig 2 attached to Dr Grigg’s report there would have been insufficient time and space to evade an oncoming southbound vehicle unless, improbably in the circumstances, it was travelling wholly on its incorrect side.

37. I find that the first plaintiff’s loss of control of her vehicle was directly attributable to the negligence of the driver of the unidentified vehicle who in circumstances where visibility was limited, travelled at an excessive speed and failed to keep the vehicle as near as practicable to the left hand side of the carriageway.

38. The plaintiffs, by their Amended Statement of Claim, allege that the loss of control of their vehicle was caused or contributed to by breaches of duty by the State of Queensland (“the State”) and the Cook Shire Council (“the Council”). In general terms the alleged breaches arose by reason of these defendants attempting or approving alterations to the roadway without removing the curve and the dip so as to provide adequate sight lines and, further, by failing to install appropriate warning signs. The first defendant seeks contribution from the State and the Council based on these alleged breaches.

39. The alterations to the road referred to was a re-sheeting of a short section of the gravel surface which is a minor routine maintenance task. Any realignment of the roadway so as to provide adequate sight lines would involve a major and costly exercise. As a result, in the final submissions, the focus of allegations of breach of duty centred upon the failure to install appropriate warning signs.

40. There was ample expert evidence that the road configuration constituted a risk to road users. Such was the opinion of Mr Brown and Dr Grigg to which I have already referred. As well the existence of such a risk emerges from the Link Strategy prepared by the State’s own officers.^[47]  The risk was also identified by road users.  Mr. Richards –

“I have travelled on this road in excess of 30 or 40 times …there is just no visibility whatsoever.  The only warning that I’ve had previously would be dust if it was a dry day and there was dust being thrown up by a car.  There is no visibility, yeah, of the dip if there was a car in the dip.”^[48]

And he added –

“having actually been on that road several times and being aware of that blind spot, I usually slowed down to a speed around 60 kms an hour and I would go very, very hard over to the left.”^[49]

41. Mrs Irwin was a long time resident of the district and used the road frequently, she said –

“As you approach that gully, the south side, you cannot see whether there is a vehicle in the gully.  Being a learned resident of the area you know you’re not going to see whether there is a vehicle coming up out of that until you reach the crest, so it was always with apprehension that you approach the crest of that gully because it wasn’t until you were right on the crest that you knew whether you were going to be OK going over it or not.”^[50]

She added that she herself had had some “very close shaves” at that location.^[51]  At the same time it should be mentioned that the State’s recorded crash statistics did not include any particular collisions at this site.  In 1999 its data base did not include the subject incident despite it being known to the police.  The data base apparently maintains crash statistics and not near misses.  The assessment of risk ought properly to be taken from an assessment of the configuration rather than any crash statistics.

42. In addition, the State had received a number of letters detailing perceived deficiencies on this road. Many of the letters are written in general terms or relate to specific emergencies. One letter recording a reference to the steep grades at Pawpaw Gully is dated 2 February 1968.

43. The manner in which the State responded to these complaints is found in the statement of Mr Ollason (ex 31[para 51-58]). These included upgrades to crossing to improve flood immunity at Leggetts Creek and progressively sealing the road from Cooktown. Mr Ollason identified the Cooktown Development Road linking the town with Lakeland Downs as the highest priority and said that there were “no funds made available for the major upgrading of Endeavour Valley Road”.(para 55)

44. Since the focus was on signage rather than major upgrading, of more significance is the fact that the State’s officers carried out routine inspections of Endeavour Valley Road by which they ought to have been aware of the risks arising from the road configuration. Ultimately, in 1999 a Traffic Study was undertaken.^[52]  As a result of this study warning signs were installed at Pawpaw Gully and at two other locations.^[53]  The signs at Pawpaw Gully were –

1. Reduce Speed sign;

2. Crest warning signs; and

3. 6 chevron alignment markers. 

45. These warning signs I find were appropriate to warn of the dangers arising from the substandard road configuration. I further find that had this appropriate signage been installed at the time of the incident the risks arising from the substandard configuration would have been reduced by reason of road users travelling in either direction being appropriately warned. Specifically, I accept that the first plaintiff would have reduced her speed and moved further to the left side of the carriageway.^[54]  Appropriately warned, she would have had the opportunity to move to the left.  Without that warning the limited sightline did not allow that opportunity for a first time user.  As a result the need for evasive action would probably have been avoided altogether or its extent reduced such that the first plaintiff would not have lost control of her vehicle. 

46. The question then arises whether any liability rests upon the second and/or third defendant as a result of this finding. Before dealing with claims made by both the plaintiffs and the first defendant that such liability should ensue, I should first determine the issues between those two defendants.

Issues between second and third defendants

47. The State admits that it exercised control over the maintenance of the road as part of the network of roads in Queensland under its control. Para 4(g) of its Amended Defence. However, the State asserted that by reason of a Road Management Performance Contract (“RMPC”) between it and the Council, the council was obliged for a period of 12 months commencing on 1 July 1996 to detect defects in the road; prioritize defects going to the safety; and promptly remedy such defects, if necessary, by temporary signage. By reason of this the State argues that at the relevant time its control of the roadway was exercised pursuant to the RMPC by the Council.

48. The Council argues that the terms of the RMPC and relevant legislation limited the scope of its obligations under that contract, such that the Council was neither permitted nor obliged to rectify the defects of which the plaintiff complained nor to install warning signs. In particular the Council had no responsibility for the design, construction or maintenance of the roadway other than what the State required it to do under specific contractual arrangements. It is to the legislation and those contractual arrangements that I must now turn to determine whether either or both of these defendants are caught by the allegations of the plaintiff and first defendant.

49. The starting point is the agreed fact that the relevant part of Endeavour Valley Road is a State controlled road as defined in Schedule 6 of the Transport Infrastructure Act 1994 (hereinafter “the Act”).  Such a road is excluded from the class of roads over which a local authority has statutory control pursuant to s 497 of the Local Government Act 1993.  See s 4- “roads”.  The Transport Infrastructure Act goes further by conferring on the Chief Executive the right to “exercise all the powers that a local government may exercise for a local government road in the area”. Section 26.

50. Various provisions of the Act need to be set out. I will identify the relevant sections initially by the numbers which applied in 1996.

27(1)The chief executive may, in accordance with the relevant roads implementation program, carry out, or enter into contracts for the State with other persons (including local governments, …) for the carrying out of –

(a)Road works on a State-controlled road or on land that is intended to become a State controlled road; or

(b)Other works that contributed to the effectiveness and efficiency of the road network; or

(c)The operation of a State-controlled road.

(2)The chief executive may, for the State, carry out road works on a local government road in accordance with an agreement between the chief executive and the local government.

(3)…

(4)A contract with the local government under this section about the maintenance and operation of a State-controlled road may include arrangements about which powers of the local government are to be exercised by the chief executive and which of the powers are to be exercised by the local government for the State-controlled road. (Now section 29)

…

31(1) A person must not, without lawful excuse or the written approval of the chief executive –

(a)Carry out road works on a State-controlled road; or

(b)interfere with the State-controlled road or its operation.

Maximum penalty – 200 penalty units

(2)And approval may be subject to conditions decided by the chief executive.

(3)A person must not contravene a condition that applies to the person under subsection (2)   (Now section 33)

…

43 (1)A local government may exercise, for a State-controlled road in its area, all the powers that it may exercise for a local government road in its area.

(2)However, if there is a contract of the kind mentioned in section 27(4) (Powers of chief executive for road works contracts etc) between the chief executive and a local government, the exercise of the powers must be done as required by the contract.

(3)If there is no contract of the kind mentioned in s 27(4) between the chief executive and a local government, the chief executive may direct the local government not to exercise any or some of its powers for a State-controlled road specified in the direction.

(4)A direction under subsection (3) may be subject to conditions.

(5)A local government must comply with directions or conditions under this section.

(6)the exercise of a power by a local government under this section is not a contravention of this Act…”  (Now section 45)

The relevant provision of the Traffic Act concerning official traffic signs are –

“Chief executive may install or remove official traffic signs

12B.The chief executive may, for the purposes of this or another Act –

1. install an official traffic sign on a road; and

2. remove an official traffic sign from a road.

Local government may install or remove official traffic signs

12BA(1) A local government may install an official traffic sign in its area –

1. on a road that is not a declared road; or

2. on a declared road, with the chief executive’s written agreement; or

3. on an off-street regulated parking area.

51. In Queensland there are four Main Roads regions, one being the North Queensland region. This region is divided into three districts, with the subject roadway being located in the Peninsula District.^[55]  The Peninsula District contains some 3,033 km of State controlled roads of which, in 1996, 1300 kms were unsealed roads.  The district office located in Cairns receives a budget allocation which is based on a number of variables identified by Mr. Ollason as:-

• Historically established routine maintenance cost;
• Funding required to sustain employment levels across the district;
• The commitment required to maintain a Capital Works rolling plan;
• The amount of money available to the contracting industry (e.g. RoadTech and local authorities);
• Funding necessary to enable planning/design of future capital works programs;
• Any maintenance or capital works needs that have emerged or are emerging;
• Funding necessary to deal with natural disasters;
• Political commitments.^[56]

52. Budgeting is done on a five year rolling plan of works and expenditure and the budget ultimately requires ministerial approval. The allocation of funds is “dictated in significant part” by traffic volumes and also by public complaints.^[57]  Mr Ollason identified the road works as falling into four categories:-

“20.First, routine maintenance of the network through use of RMPC’s.

21.Secondly, programmed maintenance.  This was carried out in accordance with a five-year program; for example, roads that are already sealed will need to be resealed every 7 to 10 years and such reseals do form part of the programmed maintenance for the district.  Another example is the 1996 re-sheet at Endeavour Valley Road discussed below.

22. Thirdly, capital works.  This involved the expenditure of money to build new or improved infrastructure.  The department refers to this aspect of the budget as funds to extend the asset (the asset being the road network).

23. Fourthly, rehabilitation works. These works reinstate the existing pavement to the original structural condition.”^[58]

53. The area under the Council’s control is the largest local government area in Queensland.^59]  Its relative size is dramatically illustrated by a comparison with South East and Central Queensland.  See ex 40.  It is sparsely populated having, in 1996, a population of under 5,000^[60] and a commensurably smaller rate-paying base.  At the same time the council had responsibility for 2,500 kms of Council controlled roads.^[61]  The Council’s financial capacity to undertake road construction or reconstruction is markedly limited.  To compound the problem the roads are in a high rainfall area where rain related damage to the rural roads require frequent repair.  One consequence of these straitened financial arrangements is that the Council had deliberately decided to do no work at all on some of the roads under its control.^[62]

54. The council, at the relevant time, employed a Shire Engineer, Mr Bartsch, and an assistance engineer. Mr Bartsch, as a civil engineer, had extensive experience in local government works, but claimed no expertise in road design engineering.^[63]  In cross-examination Mr Bartsch agreed that the relevant section of the roadway was below a desirable standard but did not regard that it was part of his function to express that opinion to the State.^[64]

55. For some years prior to the date of this incident the State, as principal, contracted with various local governments, as contractor, for the latter to carry out road maintenance over the period of the financial year. These contracts came to be known as Road Maintenance Program Contracts (“RMPC”). Prior to 1995 the work done by the council was claimed on an input cost basis. In the 1995/1996 year the process became more formalised with the officers of the State department negotiating the terms with the various councils and then supervising the performance.^[65]  The issue between the State and the Council invites a consideration of the contractual terms of relevant RMPC’s.

56. The contract follows a process of inspection by State technical officers and the Council engineer followed by negotiations as to the work to be done and funding for it. Mr Bartsch who has attended on these joint inspections described the task as involving the driving of the full length of the road in both directions and the preparation of a schedule of the work to be carried out with the costing of those schedules having in mind how much money was likely to be available for the work.^[66]  Once agreement has been reached the work to be done is identified in a standard format.

57. In addition to these annual RMPC’s, the State and the Council entered into contracts for specified Minor Works. One such contract provided for the abovementioned gravel re-sheeting at the scene of the incident. The work covered 4.3 kms of the State-controlled road between Chainage 30.87 – 35.17 (Job No. 37/6601/716). The contractual documents are found in Ex 27 (Tab 11). The proposal was considered between April/May 1996 and the work was completed in mid July 1996. It is to this work that the plaintiff’s Amended Statement of Claim refers when alleging that the State and the Council “altered and/or upgraded … the road”. The scope of the work identified in the contract made no provision for signage. Had appropriate signage work been undertaken as part of the works the additional costs for the signs would have been approximately $1,000.^[67]  Having regard to the scale of rates contained in the RMPC, the additional labour component would also have been quite minor.^[68]

58. The Council’s position is that it owed no duty of care to the plaintiff by reason of any contract with the State. The road was not its property and it had no power or capacity to control the sources of danger – the sub-standard road configuration and the absence of appropriate signage.

59. The State argues that by virtue of provisions of RMPC’s the Council did owe a duty to the plaintiff because of its stewardship role and argues further that if the Council has breached that duty the whole of the burden of any joint liability to the plaintiff should be borne by the Council.

60. The true issues between the State and the Council are poorly defined in the pleadings. The documents now identified as being relevant are voluminous and were not tendered until the very end of the trial. Consequently the examinations of the contractual scheme with the witnesses Mr Ollason and Mr Bartsch are not as clear as they might have been. The documents tendered (ex 28) show that the contractual arrangements underwent a change which was implemented for the 1994/95 year and were further refined for the 1995/96 year. As the documents relative to that latter year (tabs 8 & 9) involved only modest changes and came into effect only shortly before the incident, it is not necessary to refer specifically to them. The documents relevant to the RMPC commencing 1 July 1995 are listed in the conditional agreement – Job No 37/91A/600.^[69]  The documents fall within three classifications:-

1. Documents completed by the contractor which include all the specific details relating to the work to be performed;

2. Documents that apply directly, these documents are in general terms and include particularly general conditions of contract; and

3. Documents incorporated by reference, which include standard specifications and the RMPC manual.

That manual comprises four volumes –

Volume 1 – RMPC Preferred Supplier.

Volume 2 – RMPC Open Competition

Volume 3 – RMPC Guidelines for Undertaking Routine Maintenance.

Volume 4 – RMPC Management System User Guide

I have been specifically referred to Volumes 1 and 3 of that array of documents.

61. The specifics for the work to be performed are found in the Schedule to the conditional agreement (ex 28 tab 1). The Schedule identifies some maintenance activities for which there is a lump sum agreement and other activities for which a unit rate for the work is agreed.

62. The contract is the end result of negotiations between the departmental officers of the State and the Council’s engineer. The negotiations followed a pattern each year. This involved a joint inspection of the State controlled road system within the Council area during which certain needs were identified. Some of the needs were of a periodic nature, e.g. the re-sheeting of a section of the road which had not been done for five years. Other needs were noted and an allowance made, e.g. normal grading. However, in respect of many items the parties simply anticipated that work would be required during the course of the year and agreed upon the rates. The anticipated maintenance work related to defects which became apparent during the contract period. The maintenance work would be undertaken when a defect reached a point described as the “defect intervention level” as defined.^[70]  The final contract sum was arrived at upon the schedule of rates to be applied to the works identified and anticipated. 

63. The various activities to be undertaken pursuant to RMPC are identified by description and by an item number, e.g. traffic signs –

511 install new signs (excluding guide signs)

512 cleaning signs

513 repair signs ^[71]

The defect intervention level is identified in respect of each defect classification in Appendix 2 to Volume 3 “Guidelines for Undertaking Routine Maintenance”^[72]and the work procedures and requirements and restoration standards are set out in Appendix 3 of the same document.  The manual identified three roles played by the contractor – Network Steward, Maintenance Manager and Supervisor and Operations Contractor.^[73]  These roles are identified in equivalent terms in the “general conditions of contract”^[74] but to the identification of the contractor’s roles are added provisions for construction standards to be observed (clause 3.6) as well as requiring the contractor to provide certain warranties (clause 3.7). 

64. The stewardship role of the Council is defined in the general conditions in the following way:-

3.2 Network Stewardship

The Contractor shall be responsible for the Stewardship of the Network.  This will include:

• Ensuring that maintenance funds are wisely invested and that the infrastructure asset as maintained in the best interests of the Principal;
• Ensuring that discretionary changes within the Network Schedule total(s) are sound and justifiable;
• Dealing with maintenance concerns at a local level and only referring such concerns to the Principal when necessary;
• Ensuring that any advice to the Principal is both timely and of a high standard.

Counsel for the State draws attention to this provision and others in this documentary array to suggest that the Council had an obligation to carry out maintenance as intervention levels were reached and to provide advice (in the form of notice) to the State pursuant to its obligation as to known defects.  It argued that these obligations had arisen because the non-existent signage meant that the intervention level was reached and secondly, the Council through Mr Bartsch was aware of the sub-standard features of the road and it had the stewardship obligation to advise the State.

65. That clause can only relate to the subject matter of the contract. The nature of the contract is expressed in clause 2.2 as:-

2.2 Nature of the Contract

The Contractor shall generally manage and perform the Maintenance on the specified road Network in accordance with the requirements of the Contract Documents.”

Thus it is seen the stewardship obligation is limited to maintenance on the specified road network.  It certainly does not flow from these provisions that the Council takes over the general obligations of the State with respect to its network. 

66. The scope of the maintenance work to be undertaken pursuant to the RMPC’s was to protect the existing traffic infrastructure – the constructed road and the road furniture. In my view, the reference to “defects” and “defect intervention level” in the contractual documents is a reference to that infrastructure and not to deficiencies in design or to the risk arising from deficiency in design. I find there is no obligation on the Council to give general advice to the State about road design or the requirements of signage in conformity with the relevant MUTCD. Though Mr Bartsch had a copy of the relevant manual and expressed an opinion that the road configuration was “below desirable standard”,^[75] he was not in a position to be an advisor to the State on such matters.  Nor did this indicate any obligation to advise on road design matters.  Even a fleeting comparison of the State’s expertise and capacity in road design matters with those of the Council would lead one to reject the suggestion that Mr Bartsch, or through him, the Council had any such obligation to advise the State’s experts.

67. As to the stewardship role, according to Mr Bartsch the discussions during the joint inspections related to existing signage.  There was no consideration of upgrades or new signs.^[76]   Such an assertion seems to be consistent with the process that was followed when the State finally in 1999 investigated the need for new signage.  The investigation was carried out independently of the RMPC regime.

68. Turning to the contractual documents, three items of specified works related to signs –

The interpretation of those items is clear enough.  Following the joint inspection, 26 hours at $143 per hour was allocated to the particular task of installing new signs.  A similar approach was made with respect to the cleaning of signs.  However, no allocation was made for the repair or replacing of defective signs.  The allocation of 26 hours for the installation of the new signs could not possibly have been intended to the task of undertaking road design considerations, ordering appropriate signs and then erecting them within that allocation of time.  I find that the item – installation of signs - simply related to the cost of erection of the sign as had happened over the previous financial years.  This item did not contemplate the work necessary to determine the appropriate signage for the road configuration which work involved considerations of speed environment and geometry of the roads.^[77]

69. The question then is, who is responsible for determining where signs are to be located in accordance with MUTCD and who is responsible for the funding of such work.

70. The question, in my view, is of easy resolution . It is the State and not the Council which has the legal authority and statutory responsibility to erect signage. It is the State which has available expertise through its employment of qualified traffic engineers. The Council has no such expertise. Neither the stewardship arrangements nor the specific items under the RMPC allowed for the Council to engage such experts. It is the State which allocated the funds for work on its own controlled roads and did so in a highly prescriptive manner.^[78]  There was no evidence to suggest that the State would welcome a Council, as part of its stewardship obligations, deciding what was the appropriate signage and proceeding, unilaterally, to erect signs.  It is implicit from other parts of Mr Ollason’s statement that the State would not welcome the Council doing so.  Mr Ollason spoke of placing signage on all configurations so as to avoid an inconsistent driving environment.^[79]  Further, it was the State’s practice to specify what permanent signage was required.^[80]

71. The process by which appropriate signage was ultimately installed in 2000 was that the State’s officers attended a community meeting called by disaffected citizens and undertook to do a study. This involved giving “a traffic engineer a brief to look at the speed limits on Endeavour Valley Road and the signage at the curves and the dips”.^[81]  The Traffic Study which resulted in the appropriate signage being installed did not appear to me to be a major undertaking for an engineer.  The primary scope of the report was to review speed limits.  This appears to have been done by the completion of a number of standard forms all of which are dated on the same day – 22 September 1999.  Mr Ollason however thought the study would involve one week’s work “to pull the report together”.^[82]  There were no equivalent forms for the assessment of warning signs other than speed signs.  All that appears in Part 4 of the Traffic Study is the specification for the location of nominated warning signs. In the end result warning signs (other than speed advisory) were required at only three locations.  This involved a total of 15 common signs.^[83]  This outcome is consistent with the remarks of Mr Brown who described his practice of doing a periodic review of the condition of all roads in the system, identifying localities that had reduced or unsatisfactory signage and then attempting to remedy those situations.^[84]  Moreover, if, as a traffic engineer, he was undertaking a re-sheeting of the road surface, he would then consider the adequacy of signage.^[85]

72. This raises the question why the need for remedial action at the three locations identified in the Traffic Study had not been identified on any of the bi-monthly inspections of the road previously undertaken by the State’s officers.

73. Had the need for action been identified the cost of remedying was quite modest. For 9 signs to be erected at Pawpaw Gully, the estimated cost was approximately $1,000.^[86]  The other six signs I assume would have cost proportionally less.  If such a cost could not have been managed in an annual RMPC budget then it would have been a very minor item in the “Minor Works” program for the re-sheeting of the surface undertaken prior to the accident.

74. The re-sheeting obviously results in an improved surface and therefore I anticipate motorists would be encouraged to travel at higher speeds. I would have expected some consideration, or reconsideration, of safety issues in this environment of such obvious risk when the re-sheeting work was being considered. I accept the opinion of Mr Brown that signage for this location should have been considered at routine inspections and more predictably considered during the undertaken of a re-sheeting operation. I would have expected also that during the course of routine inspections it would have been established that there were only two other locations requiring in total six warning signs. This fact would not justify inaction on the grounds that there is a need to consider the whole road to avoid the danger of giving inconsistent messages to road users. In any event, Mr Ollason agreed that the desirability of consistency would not override the need for signage in a particular case.^[87]

75. I am satisfied that the need to erect appropriate signage to warn road users ought to have been obvious to inspectors employed by the State making routine inspections of the subject road. I am satisfied that the cost of providing a remedial signage was relatively inexpensive, particularly if associated with other works such as re-sheeting a road surface. I am satisfied that consideration ought to have been given to the risks arising from the substandard road configuration at the time re-sheeting of the Pawpaw Gully section of roadway was undertaken in 1995/6. I am satisfied that the State failed in its obligation to adequately inspect the roadway or to provide the remedial action by way of appropriate signage.

76. The question then is whether these circumstances result in a breach by the State of its obligation to take reasonable care for the plaintiffs.

77. The relevant duty on an authority exercising statutory powers with respect to roads was considered by the High Court in Brodie & Anor v Singleton Shire Council.^[88]  From the judgment of the majority (Gaudron, McHugh and Gummow JJ) the following passage appears:-

“The duty which arises under the common law of Australia may now be considered.  Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff.  Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk.  If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonable be suspected to exist.

The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire council v Shirt (328), a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances.  In the application of principle, such thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.”

Kirby J agreeing with the majority that the “highway rule” should be abandoned then expressed the view that “in determining whether a duty of care exists in the case of a statutory authority it is necessary to answer three questions and to do so by reference to, amongst other things, the authority’s statutory charter.”^[89]  His Honour then identified the issues to be decided having regard to the statutory powers of the respondent as being –

1. Was the damage to the applicant reasonably foreseeable?

2. Was the relationship between the applicant and the respondent sufficiently proximate?

3. Is it just and reasonable to impose a duty of care in the circumstances of the case?

78. In the discussion of the road’s history Mr Ollason revealed that the road has been under the control of the State since 1935. The length of the road under State control was reduced from 51.9 miles to 34.8 kilometres in 1987. The road is classified as a rural road and it carries a low traffic volume – 300 to 400 vehicles per day. The plaintiffs recognised that other priorities for road funding were such that the State’s duty of care would not extend to a reconstruction of the road so as to remove the substandard features of the configuration. Rather, they rely upon a lesser obligation of installing appropriate signage. This was identified in the majority’s reasons in Brodie in the following terms:-

“156.  It may also be that, although a road is in a dangerous condition, the authority will have discharged its duty of care by taking reasonable steps to minimise any danger or to prevent it arising.  The authority may have provided adequate warning to users of the road by erecting appropriate signs (so that, if exercising due regard for their own safety, users are able to avoid the danger), or by building into or adding to the road features such as safety devices or fencing which tend to minimise the danger.”^[90]

79. Three further passages from the majority’s reasons in Brodie should be referred to.  The first, relates to the obligation to inspect and to act upon danger so exposed:-

“165.  … [T]here will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them.”

Here of course there is evidence that regular routine inspections were carried out and expert evidence that the dangers associated with the subject road configuration ought to have been discovered.  A specific complaint was made in 1968.  It is clear that no remedial action was taken until 1999.

80. The second passage relates to the discharge of duty as follows:-

“159.  The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm.  …

160. In dealing with questions of breach of duty, whilst there is to be taken into account as a “variable factor” the results of “inadvertence” and “thoughtlessness”, a proper starting point may be the proposition that persons using the road will themselves take ordinary care.”

81. The third passage relates to the position of the authority and it states:-

“162. The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority.  In circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations.  The resources available to a road authority, including the availability of materiel and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made.  They may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed.  Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question.”

82. I turn now to the application to the facts as I have found them to be, that framework of principles identifying the nature of the duty and its discharge. I regard that the nature of the State’s road undertakings in the Peninsula District and in the Cook Shire in particular, resulted in it having available sufficient resources to cover the relatively inexpensive work of erecting warning signs to reduce the risk of danger from the substandard configuration of the road at Pawpaw Gully. Having regard to the budgets in the three financial years immediately preceding the date of the subject incident, I am satisfied that the State had the capacity to undertake the erection of appropriate signage before the date of the subject incident, and to have at least done so in association with the work of re-sheeting undertaken in 1996. I find that the breach of the duty thus described has contributed to the plaintiffs’ loss of control of the vehicle.

83. As to the question of the liability of the Council to the plaintiff I find that Council had no approval from the State’s Chief Executive to undertake road works or to erect signs which would ameliorate the risks caused by the road configuration at Pawpaw Gully. There was no basis upon which the Council could lawfully undertake road works or erect signs without such approval. Section 31 Transport Infrastructure Act.  The relevant road being the property of the State there was no basis upon which Council revenue could reasonably be expected to be used for the purpose of meeting the obligations of the owner.  Consistently with these views, I find that the Council has no liability to the plaintiffs.  Were I of a different view it would seem to me that the provision of clause 8.4.3 might in any event require the State to indemnify the Council for any claim by the plaintiff.  I say this without having formed any concluded view on the basis that assuming the design deficiency was a “defect” and even though the council had knowledge of it, there was “no direction to remedy the defect” by the State.^[91]  However, because of the view I have taken it is not necessary for the scope of that indemnity to be considered.

84. It is unnecessary then to deal further with the contribution issues raised between second and third defendant. Only the State is liable to the plaintiffs and I find no basis upon which it can claim to be indemnified by the Council.

Contributory negligence and contribution

85. The first defendant alleges that the first plaintiff contributed to her own injuries by reason of various particulars which may be summarised as driving at an excessive speed, failing to keep a proper lookout and driving on the incorrect side of the road. See para 7(a) of Amended Defence.^[92]

86. The first defendant’s arguments are based upon my acceptance of their submissions that the plaintiff was travelling on her incorrect side of the roadway “to a substantial extent” and was travelling at an excessive speed “for the situation and the crest/curve configuration” as well the first defendant submits that there was failure of control of the vehicle resulting from these primary circumstances.

87. I do not accept these submissions. The plaintiff’s line of travel was, in my view, appropriate for the circumstances as she expected them to be in the absence of any warning signs. By the time she became aware of the limited sightline imposed by the crest, it was too late for her to position the vehicle further to the left or before its being confronted by the presence of the other vehicle. Nor do I accept there was any failure of lookout on her part. The limitations of the sightline simply were not obvious to a northbound driver. These findings, couple with my earlier findings as to the speed of the plaintiff’s vehicle, lead me to conclude that the first defendant failed to prove any contributory negligence on the part of the first plaintiff.

88. It is necessary to apportion responsibility for the plaintiffs’ damages between the first defendant and the State pursuant to s 6(c) and s 7 of the Law Reform Act 1995.  This involves a comparison of both culpability – the degree of departure from a proper standard – and the relative importance of the conduct of the parties causing the damage.  Per Thomas JA in James Thane Pty Ltd v Conrad and National Hotels Corp.^[93]

89. The State’s failure to install signage affected the way in which the first defendant used the road and may also have affected its use by the unidentified driver. One must assume that the presence of signage would have had an effect in reducing the risk since that is its very purpose. However, for the southbound driver, the presence of the crest was an obvious feature of the road configuration. What was hidden was the curve beyond the crest. The presence of the crest and the reduced sight line was observable to the southbound driver for a considerable distance. There was ample time therefore for this driver to adjust both the speed and position of the vehicle on the road. By his failure to do either I find this driver to be mainly responsible for the plaintiff’s damage. I have already indicated the State to be in breach of its duty.

90. I apportion 80 per cent of the responsibility to the first defendant and 20 per cent responsibility to the State.

Quantum

91. As previously indicated the quantum of the second plaintiffs claim has been agreed. There remains to be assessed damages for the first plaintiff to whom I will now refer to as “the plaintiff”.

92. The plaintiff was born in Hamburg, Germany on 21 August 1955. Thus, at the time of the incident she was 41 years old and is now 49 years. The parties have agreed that an appropriate life expectancy for the calculation of future damages is 30 years.

93. The plaintiff married on 10 June 1976 and migrated to Australia in January 1983. they have two children – Olaf, born in August 1981 and Fenja born August 1982. At the time of coming to Australia the plaintiff held tertiary qualifications as a chemical and biology laboratory technician.

94. Until 1987 the plaintiff was fully engaged in the care of her family and looking after the household. Between 1987 and 1990 she worked part time as a teacher of German language at a college in Sydney. In 1991 the family moved to Canberra where her husband was employed by the energy Research and Development Corporation. Also through 1991 and 1992 the plaintiff pursued an interest in silk painting and artwork. This commenced as a hobby but later produced income in a small way. From Easter 1993 until April 1994 the plaintiff found part time employment for 18 hours a week as a research assistant at the Centre of Sustainable Energy Systems within the faculty of engineering and information technology at Australia National University. The plaintiff resigned because she found that the work interfered with her commitment to her family and particularly her care of the children, who were then aged 12 and 11 years respectively. Her intention was to resume part time employment when both children were in high school (in 1997) and thereafter increase the hours to fulltime employment as the family demands lessened. She taught the German language to a few private students.

95. At the research centre, the plaintiff was one of between 10 and 15 research assistants and had the opportunity to be flexible in the number of hours that she worked. The first plaintiff was highly regarded by the director of the centre, Professor Blakers, who described her as being diligent and being very careful with detail. Professor Blakers said that he had a great deal of say in the hiring of assistants and said that had the plaintiff sought it, there was a “high probability” she would have gained employment sometime around the middle of 1997.^[94]

96. The evidence suggests that before the accident the plaintiffs lived in a well-ordered, well functioning household. The plaintiffs were active people who enjoyed different pursuits but were particularly fond of travelling. Before coming to Australia the plaintiffs had visited many parts of Europe. In the years after arriving in Australia they participated in camping trips of various places in New South Wales and extended trips to each of the other states. The nature of the activities engaged in on these excursions are well illustrated in the video exhibit 3. Between 1990 and 1995 the first plaintiff had three trips to Europe, principally to visit family and friends in Germany. Prior to the accident the plaintiffs had made plans to travel to Europe again in 1997 as well as going to central Australia. As we are aware, this incident occurred on an extended trip to Far Northern Queensland.

97. The plaintiff followed a number of pursuits. She was active in two different bush-walking groups and was involved in the artistic endeavour of silk painting and making jewellery.

98. In summary, the plaintiff, prior to the accident, enjoyed good health, a stable family life and an active lifestyle with high prospects that these would continue. She expected to return to work which she enjoyed as her obligations to her children reduced.

99. As a result of this incident the plaintiff suffered a fracture dislocation of the C6/7 vertebrae which Associate Professor Yeo, specialist in spinal injuries, described as “functional C6 motor tetraplegia with some sparing below this level and slight recovery of grasp in her left hand”.^[95]  Dr Buckley, consultant physician in rehabilitation medicine, particularised the injury in these terms:-  .

“Mrs Theden has, technically, a complete C5 quadriplegia (denoted by the last normal level of cervical cord function, the C6 dermatome having abnormal sensation to pin prick.

Functionally, however, she is best described as having a C7 level quadriplegia (denoted by the last normal muscular level) with normal strength in the C7 myotomes.”^[96]

100. In lay terms this means that the plaintiff is paralysed below the level of her bust line. She can move her arms but has greatly reduced inability and strength in them. In her left hand there is some capacity to grip between thumb and forefinger but in the right hand there is no grip at all. The plaintiff was right hand dominant. She can, with the assistance of aids and splints, grasp some objects and hold them. For example, she can use her left hand to hold a pencil but to write needs to grasp her left hand with her right hand to guide it. She is able to type using one finger secured in a finger splint. She can mobilise in a light weight manual wheelchair but finds that causes problems with her shoulders. She is unable to walk or to stand and gains mobility by the use of both a manual or electric wheelchair. She does have the capacity to transfer from wheelchair to bed and vice versa but this is laborious and attended by a risk of falling. Transfers are mainly undertaken with the assistance of a carer. I mention only some of the aspects from the catalogue of deficits which are set out in pp 9-16 of the plaintiff’s quantum statement, ex 2. The plaintiff is totally dependent on others for the preparation of her meals, for domestic service and /or attending to her personal care.

101. The plaintiff experiences constant pain in the paralysed parts of her body with occasional spasms which are reduced but not eliminated by the taking of medication. Each morning when she wakes she is in pain without the prospect of relieving that pain until she is attended to by an outside carer who is scheduled to arrive at 7.00 am.

102. The plaintiff has no control over the lower bodily functions and has a supra-pubic in-dwelling catheter which has to be replaced every month. The bowel function is manipulated with enemas every second day but nonetheless she experiences frequent faecal accidents.

103. The plaintiff has suffered an adverse psychological reaction to her situation which includes bouts of depression, anxiety and emotional lability. She feels chronically fatigued. For practical purposes the plaintiff is entirely dependant on others for her day to day needs.

104. Initially the plaintiff’s injury necessitated a long period of hospitalisation. She was treated firstly at the Intensive Care Unit at the Princess Alexandra Hospital in Brisbane where she remained for one month. She was then transferred to the Spinal Cord Unit at the Prince Henry Hospital, Sydney between September 1996 and 21 December 1996. After a short period at home during the Christmas/New Year period the plaintiff was an in-patient at the Canberra Hospital between January and 28 June 1997.

105. Thereafter the plaintiff was cared for principally by members of the family but with some outside assistance provided by community services. Her assessed need for outside community provided services was for 32 hours per week but in fact the initial care received was for only 22.5 hours. Now the plaintiff has a care regime which provides for outside assistance of only 16.5 hours. The real burden of care has fallen on the family.

106. The demands on the household and family members consequent upon these injuries have exacted a high price on relationships. Mr. Theden no longer lives with the plaintiff, though he visits each weekend to attend to some of her needs. Much of the burden of domestic care has fallen upon their son Olaf who is now 23 years of age and expecting to leave home soon to further his career. Their daughter, Fenja has already left to further her studies overseas.

107. Throughout the period since the incident the plaintiff has made a valiant attempt to continue with her activities despite her disabilities. With encouragement from her former work supervisor, Professor Blakers, she attempted to return to work but realistically could not perform many worthwhile functions. She has continued her teaching of German language to a few students but this is much more burdensome than previously. Her continuation in this role is doubted because of her reduced capacity and a declining demand for such teaching.

108. The plaintiff was described by her husband to be a “stoical, independent person with a strong personality”. This is evident also in the manner in which she meets the daily challenges which are graphically depicted in the video, ex 3 and in the assessment made of her by the health practitioners whom she consulted.

109. Despite the plaintiff’s commitment to regain as much independence as possible there is a necessity to assess her needs realistically. Central to this task is a determination of her practical care needs and the assessment of the likely cost of providing the regime which will satisfy those needs. Before undertaking those considerations I shall deal with some disputed issues relating to general damages and economic loss.

General damages

110. The plaintiffs’ representatives contend that an appropriate allowance under this heading is $200,000 whilst the defendants’ representatives suggest the sum of $170,000. The parties referred to a number of awards for claimants with somewhat similar injuries, they are:-

Scarfe v State of Queensland (1998) QSC 223

Hornburg v Horriban (1997) QSC 207

Lebon v Lake Placid Resort Pty Ltd (2000) QSC 49

Hooker v Farquhar (unreported) 1749 95

These cases clearly establish the range within which the allowance should fall. My attention has been drawn to the various differences between the claimants, such as age and comparative upper limb disability.  But much depends also on the quality of the pre-accident life of the claimants and what were their prospects for the future.  These features do not lend themselves to easy comparison.  Though the plaintiff is older than the claimants in the other cases, for practical purposes there was little difference in the level and total effect of the disabilities, apart from the fact that for some of the claimants were denied the prospect of having children.  The claimant in Lebon appears to have had better upper limb control than the others but that decision, like those of Hornburg and Hooker are now some years old. The damages must be assessed having regard to the value of money of the day.  Having regard to the effects of the injury of this plaintiff to date and particularly on her drastically reduced prospects of the enjoyment of future life I assess her general damages at $200,000.

111. I will allow interest on $80,000 of that amount at 2% for eight years, which calculates to an allowance of $12,800.

Economic Loss

Past Loss

112. The claim for past economic loss is predicated upon the plaintiff’s stated intention that she would return to the work force. She expressed an intention to do so in 1997 and the actuarial calculations use the commencement date as 1 January 1997. There was no evidence that she had by mid 1996 made any overtures about starting that time and no evidence as to when the next vacancy would occur. Professor Blakers indicated that she might have gained re-employment “some time around the middle of ’97 whenever the next position came up.”^[97]  The turnover of research assistants of one to two per annum meant that she probably would not have had long to wait to secure the position.   It is reasonable to expect that she would have commenced about mid 1997. 

113. It is necessary to make those adjustments to the actuarial calculations of Mr Cromston and also to deduct from the figure that he arrived at, the actual earnings received by the plaintiff during this period. Taking these matters into account and allowing some reduction for contingencies that there may have been some other delay in the plaintiff’s resumption of work I assess the allowance for past economic loss at $125,000. I allow interest on this sum at the rate of 5% for a period of seven years which computes to a further component of $43,750.

Past Superannuation

114. If the plaintiff gained employment at the ANU she would have received a superannuation benefit based on 17% of her gross salary. If she found employment elsewhere her entitlement to superannuation would have been 7%-9%. Her husband has for some time worked as the Business Development Manager for ANU and so there were advantages in her working for the same institution. This coupled with the fact that she greatly enjoyed the work and the working relationship at the Centre leads me to conclude that her continuing employment there was a high probability. The primary calculation of the contribution is $21,250 in respect of which the employment contingencies have already been taken into account. For the additional contingency I will reduce the allowance to the sum of $20,000.

Future earning capacity

115. The plaintiff’s claim for loss of future earning capacity is predicated upon the plaintiff continuing work as a research assistant to age 65 years. The defendants contend that by reason of her husband being seven years older the prospect of the plaintiff continuing to work beyond her husband’s retirement is slight. There would have been no economic imperative for her to work had the marriage continued. Mr Theden would reach the normal retirement age in 2013, in some nine years time. The plaintiff would be then 58 years old and thus many years beyond the current age of research assistants at the Centre. In circumstances where she was supporting herself independently she might well continue. The prospect of the plaintiff reducing her working hours in the latter years also has to be taken into account. Allowing 10 years as the period over which full loss is projected seems to me to be appropriate.

116. Applying a 10 year multiplier to the plaintiff’s present net income is in my view an appropriate starting point. This yields a sum of approximately $260,000. That sum should be further discounted to take account of the contingencies mentioned above. I assess the allowance at $220,000.

Future superannuation

117. Applying the 17% university contribution to the sum of $220,000 yields an amount of $37,400. This sum should be rounded off to $35,000 to take account of the prospect that the plaintiff might have found employment outside the university environment where the superannuation contribution was less. I allow $35,000.

Income Tax Rebate

118. Council on behalf of the second defendant identified an issue of whether, in the calculation of the cost of future medical and care expenses, regard should be had to the availability of a rebate of income tax for 20% of such expenses which exceed $1500 per annum. This argument, adopted by all defendants, was pursued in written submissions which referred to s 159P of Income Tax Assessment Act 1936 (Cth) and to the ATO Interpretative Decision 2003/954 handed down on 23 September 2003. 

119. The defendants referred to a comment of Professor Luntz Assessment of Damages (4^th Edition) at para 4.2.6 as follows:-

“Under the Income Tax Assessment Act 1936 (Cth), s 159P, a taxpayer whose annual expenditure on medical expenses, as defined in this section, exceeded a threshold ($1500) is entitled to a rebate of 20% on the excess in the assessment of income tax.  Since the damages recoverable in respect of medical expenses are probably not themselves taxable in principle the damages should be reduced by the value of the rebate.”

120. The Interpretative Decision by the ATO was to the effect that a taxpayer did not have to reduce the medical expenses relied upon for rebate claims by the amount of any sum received by way of compensation.

121. However, the defendants’ argument rests upon two assumptions. Firstly, that the plaintiff will in the future be a taxpayer and secondly, that her income tax liability in any one year will exceed the calculated 20% potential rebate amount.

122. The plaintiff has virtually no capacity to earn income from personal exertion. There is no evidence of her receiving taxable income from investments. I am not sure on what bases the defendants contend that the plaintiff will have a future liability to pay income tax. If I am asked to assume that she will invest part of the damages to be awarded in this judgment, then that is something I cannot do. From the third of the “fundamental principles” identified by Gibbs CJ and Wilson J in Todorovic v Waller^[98], the Court has no concern with the manner in which the plaintiff uses the sum awarded; the plaintiff is free to do what she likes with it. 

123. There is no basis for me to determine that the plaintiff in any of the future years will be a taxpayer much less for me to attempt to determine that her taxable income will be at a particular level. These are matters of pure speculation. Added to that is the further speculation of whether the amount of the medical expenses incurred in any one of the future years would be so matched to the taxable liability of that year as to enable the plaintiff to receive the maximum rebate.

124. I therefore reject the argument that allowances for medical and attendant care should be reduced to take account of the s 159P rebate.

Future care

125. The future care needs of the plaintiff is the most significant item in the assessment of damages. The remarks from the joint judgment of Gibbs and Stephens JJ in Sharman v Evans^[99] suggest the approach to be adopted, it reads:-

“The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff.  If cost is very great and benefits to health slight or speculative, the cost – involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly less benefit.  When the factors are more evenly balanced, no intuitive answer presents itself and the real difficulty of attempting to weigh against each other to incomparables, financial costs against relative health benefits to the plaintiff, becomes less manifest.”^[100]

126. In Van Gervan v Fenton^[101] the joint judgment of Mason CJ, Toohey and McHugh JJ posed the following questions:-

“In a case such as the present, therefore, it is necessary to determine two questions:

1. What are the services required to satisfy the plaintiff’s need resulting from the defendant’s wrong.

2. What is the value of those services.”^[102]

127. When the plaintiff was discharged finally from hospital her family approached her care with commendable commitment and energy. Realising that the existing three level residence could not be converted to accommodate her needs, a purpose built house was planned and constructed at Amaroo before her discharge from hospital. Dr Henke described it as being “almost exemplary in its design and layout”.^[103]  This facilitated the care obligations and probably reduced the plaintiff’s dependence on external carers.

128. Initially much of the care was provided by the plaintiff’s husband and her two children assisted by external care provided by Home Help Service Inc, a community based provider. The present regime of 16 hours external care and 5 hours respite care is set out in the following table:-

129. The plaintiff’s husband, with a salary sacrifice, reduced his working week to four days instead of five. The actual time that the family members applied to the plaintiff’s needs could never be properly quantified. They provided comfort and psychological support, they attended to minor adjustments of the plaintiff’s bodily position as well as fetching and carrying things as the plaintiff needed them. Such tasks included essential maters such as attending to draining her urine bag, to minor deeds such as providing a glass of water. The plaintiff can drain her urine bag but as indicated on the video this is a difficult task for her given her lack of finger control. It is a relatively simple task for an able bodied person.

130. The plaintiff’s husband has spent many hours exercising various parts of her body or placing her in mechanical aids for this purpose. One such exercise after years of persistence gave her the capacity to roll from one side to the other.^[105]  She uses a rope to pull herself into position but as the video shows her movements are not so free and controlled as to allow confidence that the plaintiff could move herself from an uncomfortable or unsafe position.  The point is that he was present for the period from transfer to the equipment and transferring her back to the wheelchair on completion of the exercise even though he may have only been physically involved in the transfer.  This type of service is not provided for in the Home Help regime.

131. Mr Theden also spoke of difficulties that could occur during the night, he said:-

“During the course of the night I would only need to attend to Thekla on an occasional basis, usually if there was some problem.  For example, if the tube draining her leg bag came off and leaked all over the bed I would need to clean it up and change the sheets and clean Thekla up and put her back to bed.  Also if she soiled herself during the night I would have to clean her up and clean the bed.  That was also a problem when she soiled herself during the day time.”^[106]

132. Because of changes in his working arrangement Mr Theden in the period immediately before leaving home in mid 2003 was at home for three to four days per week. Thus, he was on hand most of the time to meet the immediate needs of the plaintiff or to provide routine assistance. The comments about her independence made by the plaintiff to health professionals during this period would have to be understood in this background.

133. The manner in which care for the plaintiff has been provided in the past is not a complete guide to what is reasonably necessary now or for the future. The very significant change has been the separation between the plaintiff and her husband and the fact that her remaining child will leave home to further his career when the plaintiff is financially able to provide for her own care.

134. The plaintiff, in my view, is totally dependent on others for such matters as:-

• Personal hygiene
• Provision of food
• Domestic and household services
• Mobility outside the home

The level of her independence for tasks is measured by small activities.  She can move her arms but does not have much strength in them.  This means she can assist the carer to more easily dress or undress her.  She can for example put on a jacket by herself but she cannot button or zip it up.  She cannot dress the lower part of her body.  She can re-heat food which is left for her in a microwave and remove dishes from the microwave provided the dishes have been placed appropriately.  She can feed herself using specially adapted utensils.  Should however a dish be dropped or the special utensils slip and be outside her reach she has no prospect of remedying such problem.

135. The plaintiff can at present transfer herself between wheelchair and bed. The manner in which this is done and the effort required is illustrated in the video. (Ex 3). If the transfer board were to slip onto the floor she may not be able to recover it. If the detachable arm of the wheelchair is dropped such that she was not able to recover it then she would not have the support structure by which she adjusts her position in the chair. The point to note is that whilst these activities indicate a capacity to do certain tasks, the successful completion of most tasks depends upon everything going right.

136. The plaintiff has sought to gain independence in her mobility by training herself to self drive a specially adapted vehicle. In one sense this is a major achievement and a tribute to her stoicism and determination to gain independence. The effort required on each occasion she enters and exits the vehicle is quite significant. This is well illustrated in video tape (ex 3) which shows the manoeuvres required and the fact that the task of getting into the vehicle takes approximately 12 minutes. Again, the utility of the exercise depends upon there being no slips and not forgetting something that had to be taken on the journey.

137. Dr Buckley in his report dated 3 November 2003^[107] characterised these movements in the following terms:-

“In my opinion while these transfers were achieved independently they are indicative of “non-functional” transfers.  In other words, in my opinion, the transfers are of limited usefulness to Mrs Theden due to the difficulty of accomplishing them and the exhaustion which would be evident immediately after accomplishing them.  I would observe that for a quadriplegic person the amount of effort expended over several minutes to accomplish these transfers would be equivalent to a fit person running for that length of time.”

138. I find that these manifestations of independence do not, in a practical or realistic sense, lead to a conclusion that the need for assistance in mobility can be dispensed with. The plaintiff’s capacity will be reduced by an increasing age and degeneration making the self-lifting effort required for transfers more difficult. The plaintiff is concerned not to over-extend herself so as to avoid the early onset of degenerative changes. Ms Crowe commented upon this in her report of June 2003 at pp 15-16.^[108]

139. Associate Professor Yeo in his report dated 10 September 1998 expressed the opinion that if the plaintiff were living on her own “she will require a live-in housekeeper with 12 hours of handyman assistance per week (4 hours house maintenance, 8 hours transportation assistance). In addition [she] requires 3 hours of nursing assistance per day”.^[109]  Professor Yeo explained the need for a live-in housekeeper in these terms:-

“(T)he overnight carer would be a sleep over type person.  In other words, the live-in carer that I have prescribed would have essentially the role of observer, but mainly there for emergency purposes, and in deed, for the safety of Mrs Theden because of her inability to obviously act if there was an emergency situation, particularly if she were in bed at that time after 9.00 pm and also quadriplegics frequently, because of the spasticity, find themselves in a position which is difficult to correct in bed and they have some degree of being uncomfortable and require replacement of limbs, paralysed limbs, or readjustment of the patient from side to side in order to maintain some comfort, as indeed we all do when we are asleep at night.”^[110]

In cross-examination, Professor Yeo expanded on what he saw as being the dangers associated with her living on her own.  These included her personal security and emergency situations but in addition to that there is the need for having “a nearby observer for both practical reasons and also for the peace of mind of the patient”.^[111]  He also expressed the view that whilst the plaintiff has so far not been visited by some emergency conditions such as postural hypertension and autonomic hypo-reflexia, went on to say “On the balance of probabilities I would be amazed that this lady with this level of disability continued to avoid the dangers of autonomic dysreflexia and spasticity.”^[112]

140. Dr Henke who examined the plaintiff in January 2002 confirmed the level of her permanent disability and expressed his opinion of her need for 35-45 hours assistance per week.^[113]  He went on to say:-

“At night she should preferably have somebody who is within close proximity should problems arise.  This would normally be members of her family.  Should family not be available then there would be a need to have an attendant on call for her who could be potentially available within a 15 minute call time should the need arise.”^[114]

He however rejected the need for a live in carer in the following exchange:-

“But you would expect the family to be available for virtually instant response if the family was there; would you not? – If – yes, if the family was there, yes.

Well, why should somebody who hasn’t got a family have less than someone who has?  Why shouldn’t this lady have someone who could respond virtually immediately if any problem arose? – Well, I think the – the question is whether there is definite benefit in having that.  My view is that in terms of having a carer that they should – the person should be able to respond within a reasonable sort of period if called.  I – I suppose my view would be that this is a reasonable proximity.

Doctor, if this lady is to have a reasonable quality of life and flexibility through her day and evening should she so desire she needs someone on call 24 hours; doesn’t she?  A reasonable quality of life, Doctor? – When you’re saying on call, you’re meaning living within the house or are you meaning --- on call

Twenty-four hour live-in carer? – I – I don’t really think that having the person within the house is going to make that much difference to the – to meeting those needs  I mean the restrictions of her lifestyle are really created by her paralysis.  The – the other makes only a marginal effect having the person immediately present or having them within 15 minutes.  There’s not, to my mind, much difference between those two.”^[115]

141. Ms Piebenga, occupational therapist consulted by the defendants, interviewed and observed the plaintiff on one occasion – 27 May 2002 – and prepared a report dated 8 June 2002 and an addendum report dated 2 December 2003.^[116]  Ms Piebenga however had not viewed the video (ex 3) and had not seen the plaintiff since May 2002.  She made assessments in four principal areas – respiration, mobility/movement, personal care and domestic care.  In assessing these items Ms Piebenga relied upon the Motor Accidents Authority Guidelines (MAA) for assessing the care needs.  The origins of these guidelines are explained in the addendum report.  These guidelines indicated the plaintiff’s personal care needs to be “on average 4 hours per day”.^[117]  Ms Piebenga, in reliance upon reports of Dr Davies (ex 13) and Dr Henke (ex 30) suggesting five hours care per day concluded that the plaintiff’s present personal care needs were “17.5 hours per week until year 2011, increasing to 21 hours for the next 5 years and thereafter 28 hours per week for the remainder of her life.”^[118]  Added to these figures were the need for domestic services of 13.5 hours per week.^[119]  Ms Piebenga agreed that the effects of aging had to be taken into account and set out her reasons for doing so at p 10 of her addendum report.

142. The difficulty I have with the approach taken by Ms Piebenga is her lack of discussion about the change which has occurred in the plaintiff’s circumstances as a result of her husband leaving home and the likely changes to be occasioned when her son leaves home. I found also that her assessment on the critical item of wheelchair transfer not to be in accord with the evidence, and some lack of specificity in describing the “range of assistance” required for bladder care, body bathing and dressing and transfers. Whether this was a result of some communication difficulties to which Ms Piebenga referred in her first report or whether it was due to Mrs Theden’s then psychological state, the visit occurring only six weeks after Mrs Theden and her husband had separated was not explored.

143. Ms Piebenga expressed the view that a live-in 24 hour per day care was not reasonable nor necessary in the plaintiff’s case. She argued that the plaintiff’s needs can be catered for with the level of assistance already identified plus additional assistance “as needed, for help with maintaining the house, shopping, exercising and community access”.^[120]  Emergency situations were to be catered for by a system of phoned assistance, such as Vital Call.  The difficulty with the “as needed” assistance is that it has not been quantified.  Nor does the reliance on an emergency call system answer some of the unsatisfactory features referred to by Professor Yeo and Dr Buckley. 

144. There is always the prospect of “accidents” occurring – faecal soiling because of incomplete bowel evacuation, the leaking of a urine leg bag, insects crawling upon her and the difficulty of moving into a comfortable position. There would be a general reluctance to use the Vital Call system to summon a person or even a neighbour to deal with matters which might be temporary, or which, in the eyes of ordinary people, would seem to be minor irritations. These matters are easily accommodated at present because the plaintiff has had a family member living with her. In my view it is quite unreasonable for her to be without readily available assistance between the hours of 9.00 pm and 7.30 am as is proposed in the defendant’s prescription. Nor do I accept that the Vital Call system meets her needs if it simply alerts someone who has to dress and then to travel to her house to deal with what might in the end result be a trivial matter.

145. The third defendant was prepared to adopt most of the quantum submissions of the first and second defendants but put forward separate submissions as to costs of care and future home modifications. The submission on care proceeded on the basis that the allowance should be mainly guided by the present care regime and the …argued for an allowance less favourable than that proposed by the other defendants.

146. The present care regime provided by external carers is, in my view, quite inadequate. It has operated to date only because of the presence of family members in the house. This will not continue once the plaintiff has achieved financial independence. Her care requirements have to be measured in the expectation that she will continue to live in her present purpose built dwelling but without the family assistance she has enjoyed to date. Her level of dependence is such in my view that she needs a live-in carer. In this regard I accept as reasonable the opinions of Professor Yeo, Dr Buckley and Ms Crowe as to the existence of this need.

147. The next question is how this need is reasonably met and at what cost.

148. The care prescription put forward by the plaintiff in reliance on the opinions of Drs Buckley, Yeo and Ms Crowe is for a single live-in housekeeper/carer for the next seven years and thereafter for a live-in couple. In each instance these would be permanent employees working five days a week with relief services being provided on the other two days. The weekly cost of the single carer is a minimum of $1600 per week plus cost of keep of $190. For the couple the minimum cost is $1,850 plus $380 keep per week - $2,230 per week. To these amounts have to be added all of the other imposts of employment such as holiday leave loading, superannuation and agency placement fees. After providing for relief staff, weekend carers and a handyman/gardener the total cost of this prescription exceeds $3,000,000 per week for the first period and in excess of $5,000 for the second. Using figures at the tope fo the range rather than the minimum the claims made is for $3,900,000.

149. The prescription contended for by the defendants is based upon Ms Piebenga’s opinion as set out above but which in tabular form is as follows:-

Taking this total of number of hours extended over the plaintiff’s lifetime and allowing $30 per hour as an appropriate cost the defendant’s calculation totals $910,440.  The defendants contend for various reductions and discounts to that figure.  In addition to that primary calculation there needs to be an allowance for a sleep over carer at the agreed rate of $107.50 per weekday and $323.40 per weekend.  This adds a total of $707,660, resulting in a suggested allowance of $1,618,100.

150. The difficulty with the defendants’ approach is that no allowance whatsoever is made for the additional assistance “as needed” and it particularly limits the number of hours during which the plaintiff could call upon a carer during the day, particularly for transportation needs and being present for exercises. The difficulty with the plaintiff’s approach is that it bears no relationship to the existing arrangement in place when family members are residing in the house. It effectively replaces the incidental involvement of family members with a fulltime paid carer for around-the-clock care and at rates which seem to be out of proportion for the work which is to be undertaken on the fulltime employment basis.

151. The evidence of Mrs Robertson of Dial an Angel organisation, does convince me that it is much less expensive to have a combination of live-in companion care and limited other assistance than to have three or even two shifts of paid personal care.^[121]  Her evidence also establishes that the cost of emergency calls – three hour minimum payment – would increase the reluctance to rely upon a Vital Call system to cover routine emergency requests using paid carers.^[122] 

152. The task is to find a reasonable basis for care for the plaintiff. This inevitably involves some compromise between the costs of having a carer on hand at all times and the costs of having her needs met for personal and domestic care, supervision and some provision for a reasonable quality of life by a variety of carers employed for specific times. It is a compromise which the plaintiff herself will inevitably make in choosing what aspects of available care is most important to her and how that can vest be met from the paid carer market. Consequently the level of care required cannot be predicted with any accuracy. The compromise might be to pay a sleep over carer who will make a high contribution to her needs thereby reducing the cost of outside assistance or it might be to increase the hours of outside assistance and expect a minimal contribution from the sleep over carer. I accept that the costs of the respective prescriptions for the parties are not put forward as an absolute figure but rather as a guide to the potential costs which the plaintiff will be faced. The figures for the live-in carer set out in the report of Ms Robertson, on their face, are unreasonably high. Ms Robertson acknowledges that her organisation’s rates would “be probably the highest rates in the whole of Australia”^[123]  but justifies this on the basis that they provide high quality carers and have available emergency back-up services.

153. I accept that the reliance upon a live-in carer is the most appropriate and most economic solution for meeting the plaintiff’s needs^[124] but I do not accept that the costs which will actually be incurred by the plaintiff will be at the level suggested in the Dial an Angel reports.

154. In the present state of authority I am compelled to assess the cost of future care by reference to market rates, (Van Gervan v Fenton (supra); Grincelis v House)^[125] the plaintiff’s situation is such that the recruitment of live-in carers would usually be achieved by the engagement of a reputable agency and with that the inevitable placement costs.  At the same time there is no reason why the defendant ought to be called on to pay rates which are acknowledged to be the highest in Australia.  Moreover my assessment of costs of care will take into account my determination of an allowance for the carers accommodation which I consider will reduce the level remuneration payable to a live in carer.  In broad terms for the next 7 years I would allow a weekly cost of $2,200.  For the balance period when the demands will be greater and staff turnover more common I would assess the weekly cost at $3,000.  The calculation using these parameters totals $2,200 per week.  Taking into account the heavy discount already applied to the range of costs identified in the evidence I will not make any further reduction for contingencies.

155. I allow for cost of future care the sum of $2,200,000. 

Home modification

156. The parties are agreed that the costs incurred in the enforced changeover to the purpose built house at Amaroo are $18,900. They have agreed also that the additional building costs consequent upon the dwelling being purpose built lies within the range of 25-30% of the total costs which was $278,255^[126].

157. The plaintiff seeks an allowance calculated upon the mesne of that percentage range but the first and second defendants contend for the lower percentage.

158. I accept that taking the average of the percentages agreed between the relevant parties is the correct approach in the circumstances, particularly where the evidence discloses that Mr Theden himself made various alterations to the fittings without reward to make the house more liveable. I would therefore allow for this item $76,520 resulting in a combined allowance of $95,420.

159. The plaintiff went into occupation of this house in mid-1997, interest on this out-of-pocket expense ought to be paid for the intervening seven years at the rate of 5%. This calculates to a further allowance of $33,397.

Future home modification expenses

160. There are two components to this item of claim namely –

1. The provision of a fully enclosed heated 10m x 4m swimming pool and pool building equipped with a hoist for the plaintiff’s access;

2. Provision of separate living quarters for a live-in carer.

Swimming Pool

There is no argument that the plaintiff would benefit from having access to a pool for hydro-therapy exercises and general relaxation.  The question is whether it is reasonable for the plaintiff to use existing hydro-therapy facilities at Woden Valley Canberra, or whether she should have a purpose built pool in her own house.  The hydro-therapy facility in Canberra is 35 km from the plaintiff’s home but has the advantage of being supervised by a qualified physiotherapist, Ms Howell.  A further advantage would be to give the plaintiff an outing.  The plaintiff argues that it is unreasonable to expect the plaintiff to make a journey of this length for the benefit of having the exercises.  The defendants counter this by saying it is unreasonable for the defendant’s to incur the expense of providing a private pool in her home.

161. The cost associated with the hydro-therapy centre according to Ms Howell is for an initial assessment of $55 and thereafter ongoing costs varying between $30 per session if Ms Howell is directly involved and $12 per session if not.^[127]  Ms Howell also trains carers or family members who could then undertake the conduct of the exercise session.  The anticipated frequency with which the plaintiff might visit the pool would be between two to three times per week. 

162. Looking at the long term costs of using the hydro-therapy centre there would be the vehicle costs for a 70 km return journey at say 60c per km - $42 and the sessional costs of $12 if the carer is trained. Allowing for variation in frequency the sum of $125 per week is reasonable, and if this sum is capitalised over 20 years of the plaintiff’s anticipated life expectancy the primary calculation yields a sum of $83,250.

163. The costs of the pool according to Mr Deshon, architect, if it were to be a stand alone project would be $97,405. If it were incorporated with the building of a carer’s quarters, the proportional cost would be a great deal less.^[128]  Mr Deshon’s costing was for a pool with a surface area of 3m x 3m, which, on the evidence as to the use to which the pool would be put, is as much as the defendants ought to pay for. There would, of course, be additional costs for the running and upkeep of the pool but this cost ought to be offset against the advantage of having the pool at home for use by persons other than the plaintiff.  As a consequence of these considerations it seems to me to be very little difference between the capital cost of providing a pool and the capitalised ongoing costs of attending the existing hydro-therapy centre.  I propose notionally to allow the sum of $90,000 as the cost of providing appropriate hydro-therapy exercise for the plaintiff which allowance should not be the subject of further discounting since it has been reduced to a 20 year period in any event.  If these costs are utilised in a home pool and incorporated with a carer’s facility then some savings are achieved.

Living quarters

164. On the issue of the design for carer’s quarters and the purpose built pool, I accept as appropriate the design offered by Mr Deshon who has significant experience in providing accommodation for persons with disability. Mr Jurkiewicz, architect with the firm of May & Russell, provided a design for a larger pool located in a different position on the plaintiff’s property. Mr Jurkiewicz does not have the equivalent experience of Mr Deshen in designing accommodation for persons with disability, however he did say from an architectural perspective Mr Deshon’s solution was appropriate.^[129]   I reject the argument that the carer’s needs would be satisfied by accommodating that person in one of the two spare bedrooms.  I accept that the fulltime carer needs to have living space that is exclusively used by the carer.  This would include a kitchenette and a living area in which to entertain the carer’s visitors.  I would expect that the weekend live-in carer would have access to one of the remaining two bedrooms and the third bedroom should be available for the plaintiff’s family members or guests.  The provision of a carer’s accommodation justifies the reduction in the amount allowed for the cost of employing a carer insofar as it would make easier both the hiring and the retention of the carer.

165. On the issue of costing there is some difference of opinion between the quantity surveyors. Mr Pratt of W T Partnership, assessed the cost at $233,300 whilst Mr Curtis, of Napier and Blakeley, had put the cost at $155.110. Mr Pratt has, for the past 20 years, lived in Canberra and has a direct experience with the building costs of that city. Those costs at the time of his report he described as having become “very inflated”.^[130]  He identified two significant cost items which explained much of the difference between his figures and those of Mr Curtis.  These were the omission of the under-slab insulation required by local regulations, and the market rates for brickwork which exceeded the amounts shown on the usual indices.  He agreed that this reflected a peak in building prices that may not last.  Mr Curtis in his calculations initially used standard industry rates for Brisbane which he then adjusted after consultation with persons in his Sydney office.

166. On balance I accept as more accurate the evidence of Mr Pratt but will make some minor discount for the prospect of more favourable prices being likely in the future. The items included in this proposal are as follows:-

Carer’s Quarters, Pool building and pool$190,000

Additional carport (as previous)$  13,000

G.S.T.$  20,300

Total$223,300^[131]

167. For the provision of hydro-therapy exercises provision of carer’s accommodation and carport I would allow the sum of $200,000.

Past transportation costs

168. Prior to the accident the family had two cars – a Holden Barina and a Mitsubishi Pajero. In December 1996 these cars were traded in for a Ford Station Wagon on the advice that this vehicle would be suitable for the plaintiff’s needs. However, it was found to be unsuitable and was traded for a VW Transporter in December 1997. The difference between the purchase price of the Ford and its trade-in value was $16,626. The plaintiff claims this sum as part of its loss. That claim however has to be discounted to take into account the use of the vehicle over that time and the fact that the earlier vehicles would also have lost value in the period. The level of loss I assess to be at $10,000.

169. The plaintiff also claims for the difference in the capital cost between the Barina and the VW Transporter and as well the difference in the standing and running costs between those vehicles. The amounts suggested by the plaintiff are $60,000 and $41,000 respectively.

170. The defendants argue that these amounts have to be discounted since the family disposed of two vehicles and there has been a saving from the capital cost difference as well as the running and standing costs. Any comparison ought to be made on the basic cost of VW Transporter, that is, without the cost of modifications. The defendants contend for a loss on the capital cost of $50,000 which in my view is reasonable taking into account those discounting factors. Similar considerations apply to the standing and running differential which I would allow at $30,000. The allowance is thus made up of the following amounts:-

Future transport costs

171. The defendants appear to accept that the plaintiff should have at her disposal a suitably modified vehicle. This is in accordance with the medical evidence.^[132]  There is no suggestion that her needs could be reasonably met by using taxis.

172. The issue between the parties on this point is the appropriate quantification of the differential in the standing and running costs between the pre-accident vehicle and the present vehicle. There is also an issue over the frequency at which vehicles should be replaced. These factors have been costed and reduced to a weekly expense. For the plaintiff the claim is the weekly cost of $158,300 computed over the plaintiff’s life expectancy, yielding a sum of $130,180.

173. For the defendant it is argued that the appropriate differential is $110 per week resulting in the sum of $90,420 which should be further discounted to $80,000.

174. I accept the approach that the vehicles should be changed every seven years to ensure that the vehicle has a high level of reliability. This then impacts on the cost of modifying vehicles to accommodate the plaintiff’s needs. Mr Pallone in his calculations of capital cost, costed the special conversions over two cycles at $41,600.^[133]  Given that the existing vehicle is now almost 7 years old, that approach is reasonable. Taking into account an appropriate discount I would allow $100,000 under this heading. 

Increased holiday costs

175. The plaintiff before the incident led an active life which included frequent trips away from her home. At least every two years she and members of her family went to an overseas destination. Before the incident, the plaintiff was able to undertake trekking holidays and to live in low budget accommodation. Virtually all of these activities are now denied her but there is no reason for reduction in such of those activities as she is now able to engage. Moreover, there is every reason for her to continue to visit friends and relatives in Germany.

176. On any major excursion it would be necessary for the plaintiff to be accompanied by a carer. The additional costs claimed on behalf of the plaintiff are those advised in the report of Mr Matthews, Twelfth Man Consulting, dated 23 October 2003^[134] and summarised in ex 17.  By using the cost differentials in ex 17 the plaintiff claims a sum of $280,000.

177. The defendants argue that with the children having grown up and having left home coupled with the plaintiff’s ageing, the frequency of her travel was likely to reduce and the nature of it likely to be more restrained. The defendants also question whether the plaintiff will enjoy or even be able to tolerate the long flights associated with overseas travel. The travel regime costed by Mr Matthews was largely predicated upon the pre-accident activities which of course the plaintiff could no longer contemplate. The plaintiff did not herself indicate any such intention to follow the regime which has been costed. That regime is based upon the plaintiff undertaking:–

1. One full week international holiday each four years.

2. 2 x two week interstate domestic holidays each other year; and

3. Two weekend breaks each year.

178. The defendants in line with their submissions put forward a proposal which involves fewer trips and which require the plaintiff to travel economy class. Their proposal would allow the plaintiff to undertake –

1. Overseas travel every four years;

2. One interstate trip each year when not travelling overseas;

3. Four trips within ACT or New South Wales.

Applying the costing from Mr Matthews’ report the defendants concede a total cost of $79,000 over the plaintiff’s life expectancy but argue for a 30% reduction for contingencies.  I accept the defendant’s submission that travel of the frequency proposed by the plaintiff would be excessive with her present disabilities.  Equally I reject the defendant’s proposal that the costing should be on a basis other than the plaintiff and the carer travelling in business class.

179. My allowance will take account of the following projected travel –

1. One overseas trip every four years ($29,000 or $140 per week)

2. Two interstate trips every three years ($16,000 or $102 per week)

3. Two weekend trips each year ($1200 or $23 per week)

Total $265.00 per week.  I would round off this weekly allowance to $250 per week and by way of discounting for contingencies allow that expenditure over 20 years (666) resulting in an allowance of $175,000 (rounded off).

Claim for computers

180. The availability of a computer is an important response to reducing the plaintiff’s dependence on others. It allows her some scope for shopping, paying accounts, researching and generally having a means of communication with the outside world. This is consistent with the opinion expressed by Dr Buckley in his report of 22 November 1998^[135] which opinion has not been challenged.  The plaintiff has been using a computer now for some time.  She requires a finger splint to operate the keys but allowing for this limitation appears to be competent in using the computer.  A voice recognition system would of course increase her efficiency.

181. The plaintiff relies upon a report of Mr Graham Smith of AbilityTech, to identify the equipment most suited to her needs. In his updated report of 29 October 2003^[136] Mr Smith noted that the plaintiff has recently purchased a new Apple iBook and that her use of the computer had intensified.  Mr Smith’s costing provided for all the equipment necessary as well as training, extended warranty and an environmental control system to allow her to control household appliances from her bed.  The total cost of this entire system is $27,396 with recurring and running costs calculated at $9,523 per annum.  The total claim exceeds $150,000.

182. The defendants argue that the set-up costs fails to take into account the fact the plaintiff has been using some of the equipment for more than six years and that computers and associated furniture are a common part of the equipment available in most middle class homes. The defendants contend that Mr Smith has not identified the additional equipment or costs made necessary by the plaintiff’s disabilities.  The defendant suggested an approach that the costings be reduced by one half and then further discounted for contingencies.

183. In his evidence Mr Smith described the plaintiff’s need to have a “fairly robust (computer) and a powerful one to undertake the task that she is planning, including speech recognition which is a very demanding activity on a computer”^[137]  He went on to say that the intensity of her use of the computer which now is six hours a day means that reliability, sturdiness and functionality are beyond what would be “ordinarily required”.  In cross-examination Mr Smith further explained his choices of the equipment and how each item went to meet the plaintiff’s needs.

184. The home environment system is unrelated to computers but it seems to me to be a reasonable and useful adjunct to the equipment which the plaintiff ought to have in the home and I would allow the costs of that. There is merit in the defendants submission that some of the equipment at least would be part of the ordinary household equipment had the plaintiff not been injured and with time the proportion of equipment falling within this classification is likely to increase. Without undertaking a detailed identification of the items which ought to be allowed I propose to take a broad brush approach, both as to the issue of equipment and the recurring costs, and allow the sum of $120,000 for this part of the plaintiff’s claim. 

185. In summary then I would assess the plaintiff’s damages making the following allowances:-

Orders

186. I give judgment for the plaintiff against the first and second defendants in the sum of $4,472,981.00.

I order that the first defendant is liable to pay 80% and the second defendant 20% of the judgment sum. 

I give judgment for the third defendant against the second defendant upon the second defendant’s claim for contribution and indemnity.

I adjourn consideration of the question of costs to allow the parties to make written submissions within the next 14 days.