Kenny v Nominal Defendant[2006] QSC 267

SUPREME COURT OF QUEENSLAND

1. At dusk on Saturday 26 March 1994 a collision between two unregistered motorcycles left a number of young people very seriously injured. The motorcycles were being ridden by cousins. One was ridden by Clinton Anderson and the other by Carl Robert Anderson. Heather Brooker was a pillion passenger on the motorcycle ridden by Clinton Anderson and Paul Joseph Kenny was a pillion passenger on the motorcycle ridden by Carl Anderson. While Clinton Anderson owned his own motorcycle, the motorcycle ridden by Carl Anderson was owned by his father, William John Anderson. Both of the riders were unlicensed; Clinton Anderson was 15 years old; and Carl Anderson was 14 years old.

2. Both motorcycles were unregistered. The motorcycle owned by William Anderson, a Suzuki DR 400 registration number JU617, (the “Suzuki motorcycle”) had only been unregistered for eight days. Its registration was due for renewal on 18 March 1994. Clinton Anderson’s motorcycle was a Honda XR 250 model (the “Honda motorcycle”).

3. The collision occurred on Mt Coolon Road, south of Collinsville. Carl Anderson was travelling on the Suzuki motorcycle on Mt Coolon Road in a south-westerly direction. Clinton Anderson was riding on the Honda motorcycle down a long driveway onto Mt Coolon Road out of a private property owned by a family, the Widts, who were hosting a social occasion for their daughter. The Widts’ property was on the eastern side of Mt Coolon Road. As Clinton Anderson drove his motorcycle out on to the roadway, the motorcycles collided and all of the young people were very seriously injured. At least two of those injured in the collision suffered a degree of amnesia by reason of the brain damage from which they suffered in the collision with the result that they had no clear recollection of the events in question.

The trial

4. Both Paul Kenny and Carl Anderson sued the Nominal Defendant in separate actions. The Nominal Defendant in turn sued Paul Kenny, Carl Anderson, William Anderson and Clinton Anderson. The actions were consolidated and ordered to be heard together. At the trial of this matter Mr Morton of counsel appeared for Paul Kenny, Mr K Fleming of Queen’s Counsel with Mr R Fleming appeared for Carl Anderson. Mr White of counsel appeared for the Nominal Defendant. William Anderson appeared for himself in the counterclaim against him by the Nominal Defendant. There was no appearance on behalf of Clinton Anderson although I am satisfied that he was served with the counterclaim against him. At the request of the Nominal Defendant, I adjourned its case against Clinton Anderson.

5. A number of questions fall to be determined in this case. They include who, of Carl Anderson and Paul Kenny, was riding the Suzuki motorcycle. That was a live question during the trial but for reasons that will be explained I have decided on the balance of probabilities that Carl Anderson was riding the motorcycle and Paul Kenny was a pillion passenger. Other questions that had to be determined included: did Carl Anderson have permission to ride that motorcycle on Mt Coolon Road on that evening; where did responsibility for the accident lie between Clinton Anderson and Carl Anderson; were either or both of Carl Anderson and Paul Kenny wearing a helmet? Once questions of liability were determined there were a number of issues of quantum still to be determined in this case. Further, the liability and rights of recovery of the Nominal Defendant had to be determined.

6. The Nominal Defendant pleaded various defences as well as contributory negligence against both Carl Anderson and Paul Kenny. Against the rider of the motorcycle, whom I am satisfied was Carl Anderson, it pleaded that the collision was caused or contributed to by the negligence of Carl Anderson in that he:

(a)rode the motorcycle at a speed excessive in the circumstances;

(b)failed to keep any or any proper lookout;

(c)failed to keep any or any proper control of the motorcycle;

(d)failed to stop, slow down or steer clear of the motorcycle ridden by Clinton Anderson when a reasonable person who would have done so;

(e)failed to have operating the headlight, taillight and/or indicators on the Suzuki motorcycle;

(f)rode the motorcycle without due care and attention.

A defence of volenti non fit injuria was pleaded against Carl Anderson if he was the passenger.  As I have said, I am satisfied that he was the rider and not the passenger on the Suzuki motorcycle.

7. As against Paul Kenny and Carl Anderson it was pleaded that the injuries or damage suffered by each of them were caused or contributed to by the failure of each of them to wear a motorcycle helmet, or a properly adjusted helmet, at the time of the collision.

8. In Mr Kenny’s claim he pleaded the following particulars of negligence against Carl Anderson:

(a)riding the motorcycle without an illuminated headline [sic];

(b)riding the motorcycle too fast;

(c)riding the motorcycle without keeping any or any proper lookout; and

(d)failing to stop, slow down or steer the motorcycle as to avoid the collision with the Honda motorcycle.

9. Against Clinton Anderson, Mr Kenny pleaded the following particulars of negligence:

(a)riding the motorcycle without an illuminated headlight;

(b)riding the motorcycle too fast;

(c)riding the motorcycle without keeping any or any proper lookout;

(d)failing to stop, slow down or steer the motorcycle as to avoid the collision with the Suzuki motorcycle;

(e)failing to give way to the Suzuki motorcycle;

(f)proceeding from private property onto Mt Coolon Road without giving way to the Suzuki motorcycle.

The statutory framework

10. The collision took place not long before the introduction of the Motor Accident Insurance Act 1994 (the “1994 Act”) which came into effect on 1 September 1994 and so was apparently governed by the Motor Vehicles Insurance Act 1936 (the “1936 Act”).  Part 3 of the 1936 Act dealt with the rights and liabilities of the Nominal Defendant where there are personal injury claims involving unregistered vehicles.  Claims in respect of uninsured vehicles, such as the motorcycles in this case, were dealt with under s 4F of the 1936 Act which provided:

“4FClaims in respect of uninsured and unidentified vehicles

 (1)Save where it is in this section otherwise provided, this section applies to accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connection with a motor vehicle on or after the first day of May, one thousand nine hundred and sixty-one.

For the purposes of this section and of section 4G of this Act –

(a)In relation to a motor vehicle the term owner includes, but without limit to the meaning assigned to it by section two of this Act, any person in whom the property in the motor vehicle is vested other than an unpaid vendor under a hire-purchase agreement; and

(b)The expression uninsured motor vehicle means a motor vehicle –

(i)that is required by or under the Main Roads Act 1920-1972 to be registered in accordance with the regulations made pursuant to that Act; or

(ii)that is required by or under the Motor Vehicles Control Act 1975 to be registered in accordance with the regulations made pursuant to that Act or pursuant to the Main Roads Act 1920-1972.

and in respect whereof there is not in force at the material time a contract or policy of insurance under this Act, …

(2)Every claim for damages in respect of accidental bodily injury (fatal or non-fatal) to any person caused in Queensland by, through or in connection with an uninsured motor vehicle for which the owner of such uninsured vehicle would be legally liable were it insured under this Act at the material time, may be made to the Nominal Defendant (Queensland) and any action to enforce any such claim may be brought against the Nominal Defendant (Queensland).

…

The Nominal Defendant (Queensland) shall not be liable in respect of a claim made to it under this subsection if at any time a contract or policy of insurance in respect of the motor vehicle concerned is so renewed that this Act requires it to be deemed that the contract or policy is in force during a period that includes the time when the accidental bodily injury to which the claim relates was caused and upon such renewal the right of action theretofore had by any person to enforce the claim against the Nominal Defendant (Queensland) shall cease to exist and any action theretofore commenced against the Nominal Defendant (Queensland) to enforce the claim shall be stayed.

…

(3B)Where, in respect of any claim which may be made to and enforced against the Nominal Defendant (Queensland) under subsections (2) … of this section, the damage the subject of the claim was suffered by the claimant as a result partly of the fault of a person or persons other than the owner or person in charge of the motor vehicle in relation whereto such claim may be so made and enforced then, for the purpose of the recovery of contribution by or from the Nominal Defendant (Queensland), Part II of The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act of 1952 applies as if the Nominal Defendant (Queensland) were the owner of the motor vehicle in relation whereto such claim may be so made.

For the purposes of this subsection damage suffered by a claimant as a result partly of the fault of a person, other than the owner, who at the time in question was in charge of a motor vehicle, shall be deemed to have been suffered as the result partly of the fault of such owner.

…

(7)The Nominal Defendant (Queensland) may settle any claim made to it under this section or any action brought against it to enforce any such claim.”

11. Where the Nominal Defendant was liable pursuant to s 4F, it might, in certain circumstances, recoup any damages that it was required to pay. Section 4G of the 1936 Act provided:

“4GRecovery from owner to driver

(1)Any amount properly paid by the Nominal Defendant (Queensland) in satisfaction of a claim made or judgment recovered against it and the amount of any costs and expenses properly incurred by it in relation to any such claim or to the action in which the judgment was obtained may be recovered by the Nominal Defendant (Queensland) as a debt –

(a)if the motor vehicle in respect of which the claim was made or the judgment was recovered was insured under this Act when the accidental bodily injury (fatal or non-fatal) in respect of which the claim was made or the judgment was recovered was caused, from the insurer under this Act; or

(b)if the claim was made or the judgment was recovered in respect of an uninsured motor vehicle, from the person who, at the time of the occurrence out of which such claim arose or in respect of which such judgment was recovered, was the owner of the motor vehicle or, where at the time of such occurrence some other person was driving the motor vehicle, from the owner and the driver jointly or from either of them severally; or

(c)if, pursuant to subsection (3B) of section 4F of this Act contribution in respect of the claim or judgment is recoverable by the Nominal Defendant (Queensland) from any person, from that person to the extent of his liability for such contribution:

Provided that –

(a)it shall be a sufficient defence in any action brought under this subsection against the owner (whether severally or jointly with the driver) if he establishes to the satisfaction of the court that, at the time of the occurrence, some other person was driving the motor vehicle without his authority;

(b)it shall be a sufficient defence in any action brought under this subsection against the driver (whether severally or jointly with the owner) if he establishes to the satisfaction of the court that, at the time of the occurrence, he was driving the motor vehicle with the authority of the owner or had reasonable grounds for believing and did in fact believe that he had such authority, and that he had reasonable grounds for believing and did in fact believe that the motor vehicle was insured under this Act.

The Nominal Defendant (Queensland) may recover, pursuant to paragraph (a) of this subsection, an amount properly paid by it notwithstanding that at the time when the accidental bodily injury (fatal or non-fatal) in respect of which the claim was made or the judgment was recovered was caused there was not a contract of insurance in respect of the motor vehicle concerned if, subsequently to that time, a contract or insurance is so renewed in respect of that motor vehicle that this Act requires it to be deemed that the contract of insurance is in force during a period that includes that time.

…

Where the Nominal Defendant (Queensland) has made any payment in satisfaction of any claim made to it, or has incurred any costs and expenses in relation of any claim made to it then, in any action under this subsection by the Nominal Defendant (Queensland) for the recovery of the amount paid by it in satisfaction of the claim, or the amount of the costs and expenses incurred by it in relation to the claim or both such amounts, or for the recovery of contribution in respect of such payment or costs and expenses, the Nominal Defendant (Queensland) shall be presumed, until the contrary is provided, to have properly paid the amount alleged by it to have been paid in satisfaction of the claim and to have properly incurred in relation to the claim the amount of costs and expenses alleged by it.”

12. The relevant effect of s 4F and s 4G of the 1936 Act for this case is that:

1. A person who is injured in a motor vehicle^[1] accident, such as the collision in this case, may claim damages against the Nominal Defendant where:

(a)the motor vehicle is uninsured; and

2. the owner of the uninsured motor vehicle would have been legally liable if the vehicle had been insured.

2. If the policy of insurance is deemed to be in force at the time of the death or injury because it has been renewed, the Nominal Defendant is not liable for any damages in respect of the death or injury.

3. The Nominal Defendant may claim contribution from a person other than the driver or owner of the uninsured motor vehicle, whose fault contributed to the death or injury.

4. The Nominal Defendant has the capacity to settle any claim brought against it and is presumed, unless the contrary is shown, to have properly paid the amount paid in satisfaction of the claim, costs and expenses.

5. The Nominal Defendant may recover as a debt the damages, costs and expenses paid by it in satisfaction of a claim made or judgment given against it:

(a)from the insurer of the motor vehicle if it was in fact insured; or

(b)from the owner^[2] of the uninsured vehicle; or

(c)from the driver of the uninsured vehicle; or

4. from the owner and from the driver of the uninsured vehicle jointly; or

5. from any person who contributed to the injury, to the extent of that contribution.

6. The owner of the uninsured motorcycle has a defence to the debt claim by the Nominal Defendant if he can establish that the driver was riding the motorcycle at the time of the collision, without his authority.

7. The driver of the uninsured motorcycle has a defence to the debt claim if he can establish that:

(a)at the time of the collision:

1. he was riding the motorcycle with the authority of its owner; or

(ii)A.he had reasonable grounds for believing; and

B.he did in fact believe that he had the authority of its owner to ride it; and

(b)(i)he had reasonable grounds for believing; and

2. did in fact believe that the motorcycle was insured under the 1936 Act.

8. The Nominal Defendant may recover against the insurer of the motor vehicle even if it was not insured at the time of the injury if the contract of insurance was subsequently renewed so that it is deemed under the 1936 Act to have been insured at that time.  Section 4 of the 1936 Act provides that where a contract of insurance is renewed within 30 days after the due date for renewal, the contract is deemed to have been renewed on its due date and to therefore to continue in force.  That, however, did not happen in this case.

9. A vehicle which is being used on private land is not required to be registered and not required to be insured and is not regarded as an uninsured motor vehicle for the purposes of the 1936 Act: Lynch v Middleton [1979] Qd R 31; Mason v The Nominal Defendant (Queensland) [1987] 2 Qd R 190 at 199.

The circumstances of the accident

13. As I previously mentioned, a number of the young people involved in the collision of the two motorcycles suffered head injuries and were therefore unable to recollect with any precision or reliability the events immediately preceding the collision. Mr Kenny’s evidence was that his last memory prior to the accident was when they turned onto Mt Coolon Road from the old Pelican Creek track. He has some recollection of looking to his left at the Widts’ residence but his next recollection was when he fell while receiving physiotherapy at the Townsville General Hospital. Carl Anderson had even less recollection of the accident, having only vague memories of what happened during the day of the collision. Neither Clinton Anderson nor Heather Brooker gave evidence.

14. However this is not a case where the court is forced to choose between competing inferences from the surrounding circumstances alone: cf Luxton v Vines (1952) 85 CLR 352, Holloway v McFeeters (1956) 94 CLR 470 and Batiste v State of Queensland [2001] QCA 275.  There was a witness, Quinton Moss, who was with Carl Anderson and Paul Kenny both immediately before and at the time of the collision.  His evidence was generally consistent with the recollection of both Paul Kenny and Carl Anderson.

15. Quinton Moss had been a student at Collinsville State High School in the same grade as Carl and Clinton Anderson, Paul Kenny and Heather Brooker. On the day of the collision he was riding his own motorcycle with Carl Anderson and Paul Kenny who were riding the Suzuki motorcycle which belonged to Carl’s father. Mr Moss had purchased that motorcycle, a 250cc motorcycle, from Carl Anderson only a couple of weeks earlier. He was 15 years old. They rode out together to a swimming hole called Blue Rock, some five or six kilometres out of Collinsville.

16. Mr Moss was riding his motorcycle while Carl Anderson was riding the other motorcycle with Paul Kenny as the pillion passenger. They left Blue Rock and went to Pelican Creek. When they got to Pelican Creek they “just burned around creek banks and played a game of cat and mouse on the bikes”. At that time Mr Moss was riding his motorcycle, Mr Anderson was riding the Suzuki motorcycle and Mr Kenny was sitting watching.

17. After a while they left Pelican Creek riding along the Pelican Creek Road which is a dirt road on to the Mt Coolon road which is surfaced with bitumen. The dirt road is about a kilometre to a kilometre and a half in length. They were intending to ride past the Widts’ house when they left Pelican Creek to check out the party going on there. Mr Moss was riding his motorcycle and Carl Anderson was riding his father’s motorcycle with Paul Kenny on the back. At no time during that day did Mr Moss see Paul Kenny drive the Suzuki motorcycle.

18. While they were riding on the Pelican Creek Road, they rode side by side and then, when they got to the bitumen road, Carl Anderson’s Suzuki motorcycle went in front. The Suzuki motorcycle was more powerful than the motorcycle Mr Moss was riding. The Suzuki motorcycle was a 400cc whereas Mr Moss was riding a 250cc motorcycle. Mr Anderson was going at a faster speed than Mr Moss which meant that he was travelling at more than 100 kilometres an hour, probably about 110 kilometres an hour, or about 30 kilometres over the speed limit on that stretch of road of 80 kilometres per hour.

19. Mr Moss did not see Clinton Anderson’s motorcycle coming out of the Widts’ property but he did see the results of the collision which happened about 100 metres ahead of him. Mr Moss’s evidence was that it was dusk, in his words, “Getting on dark, but you could still see”. He could see the Suzuki motorcycle in front of him even though it was about 100 metres away but he could not remember whether it had its lights on or not.

20. Mr Moss was skilfully cross-examined but he maintained his story and appeared to be doing his honest best to recall what happened on that day which by the time of trial was some 12 years earlier. His explanation for his memory of it was, “Well, you don’t forget two mates exploding into a million bits in front of you, you know? like, all the rest of the little details that youse are all coming up, with you know, I’m a bit – it’s a bit sceptical. But I know for a fact what happened. Carl was riding the bike, Paul was on the back, they were just in front of me, sort of thing. And bike exploded into a million bits. Like, you don’t, sort of, forget about that … scarred me for life …”

21. I am satisfied from Mr Moss’s evidence that Carl Anderson was riding the Suzuki motorcycle and Paul Kenny was his pillion passenger.

22. The only evidence which might suggest to the contrary was evidence from Carl Anderson’s father and his grandfather, that they had seen Paul Kenny riding the Suzuki motorcycle at different times earlier on the day of the collision. Carl Anderson’s grandfather was William Charles Anderson. I shall refer to him as WC Anderson to distinguish him from his son William John Anderson who was Carl Anderson’s father.

23. Mr WC Anderson saw Paul Kenny ride the Suzuki motorcycle around and out of the yard of the house where Mr WC Anderson lived on the day the collision occurred. Mr WC Anderson chided Mr Kenny about riding the motorcycle. He told Mr Kenny that if Carl’s father “finds you on his bike he will kick your arse”. This, however, was not evidence as to who was riding the motorcycle at the time of the collision.

24. As to the light when the accident took place, it appears from Mr Moss’ evidence that there was clear visibility in spite of the fact that it was dusk or twilight. Mr Moss was not asked at precisely what time the collision occurred. It can be safely inferred that he would not have been able to give evidence of the precise time.

25. It appears from an Astrological Phenomenon Certificate tendered that sunset occurred at 6.15pm, civil twilight at 6.37pm, nautical twilight at 7.02pm and astronomical twilight at 7.28pm. In that certificate it says that twilight is the time following sunset during which the sky is partially illuminated. Civil twilight is said to mark the time when ordinary outdoor operations are difficult without artificial light, although there will still be ample light to make possible large scale operations, requiring outlines only. At nautical twilight the light will have deteriorated badly although general outlines will still be visible. Astronomical twilight is synonymous with darkness.

26. The police traffic accident report states that the collision occurred at 7.15pm but that report is hearsay only. Evidence was called from Warren Hogan who was, at the time, a senior constable of police stationed in Collinsville. Mr Hogan attended the motorcycle accident scene and prepared that report. His best recollection was that it was dark by the time he attended the scene but agreed that he might not have got there until well after the collision. His notebook reported the collision as having occurred at 7.10pm but that again was no more than hearsay as it was what he was told by someone at the scene. He had no note or recollection of when the police were first called to the scene.

27. Mr Hogan took a statement in his police notebook from Megan Tudehope, a 13 year old girl, who apparently witnessed the collision. She was overseas at the time of trial and was unable to be located by any of the parties. The notes of what she told Mr Hogan, which were recorded in his police notebook, and a formal statement she made four days later, were admitted into evidence. While those documents were admissible pursuant to s 92 of the Evidence Act, one must be cautious about the weight attributed to them since Ms Tudehope did not give evidence in person and was not subject to cross-examination.  Further, there were some unexplained inconsistencies between the version of what she said recorded in the notebook and her formal statement.

28. In the notebook, she is recorded as saying that she was standing with Clinton Anderson and Heather Brooker about 20 to 30 metres away from the roadway when Clinton and Heather got onto Clinton Anderson’s motorcycle and drove off towards the road. In her statement she said she was about 15 to 20 metres from the road. She then said that she saw a motorcycle in a southerly direction without any lights on. She said in her statement that it was dark enough for cars travelling on that road to have their lights on at that time. She said that she could not see the collision because of the light but she heard the noise and saw sparks. She said she did not know how fast the motorcycle that was travelling along the road was travelling but it did not appear to her to be speeding. In her statement she said that she saw the two motorcycles very close together, which must have been before the collision. She said she saw a young male person fall off the motorcycle who was not wearing a helmet. Her surmise that it was Paul Kenny, whom she did not know at the time, cannot be given any weight at all.

29. As to the time of the collision, the hospital records show that a request for an ambulance was received at 7.10pm; the first ambulance was dispatched at 7.11pm; was on the scene at 7.16pm and left at 7.29pm with Carl Anderson and Paul Kenny. They were both in a critical condition on their arrival in hospital. Each of them had suffered severe head injuries and a broken right femur. Another ambulance was on the scene by 7.42pm and departed at 8.06pm with Clinton Anderson and Heather Brooker, both of whom were less seriously injured.

30. The hospital report as to ambulance movements tends to suggest that the collision occurred some time before 7.10pm. Although there was no direct evidence on this point, it would be most unlikely that any of the persons who witnessed the accident in 1994 would have been carrying a mobile phone so it would have taken some minutes for people near the accident to realise exactly what had happened and run back to the house to make a call to the ambulance. It is likely then that the collision occurred at about 7.00pm. This was just before nautical twilight. It was not yet completely dark and general outlines were still visible. Light in the area was artificially assisted by street lighting. It appears more likely than not that neither rider had the headlight on his motorcycle illuminated.

31. It was contrary to s 69 of the Traffic Regulations 1962 to drive upon a road during the hours of darkness without a headlight illuminated.^[3]  “During hours of darkness” is defined in s 4 of the Traffic Regulations 1962 to mean, inter alia, “any time during the period between sunset on one day and sunrise on the next succeeding day.”  As the collision occurred after sunset, it was a breach of the Traffic Regulations not to have headlights illuminated.  Not only was it in breach of the Traffic Regulations, it was also negligent.

32. The next question to be determined was whether or not Carl Anderson and Paul Kenny were each wearing a helmet.^[4]  This was pleaded by way of contributory negligence against both of them.  Mr Moss said he was “pretty sure” that Carl Anderson was wearing a helmet and he “didn’t think” that Paul Kenny was wearing a helmet.  Senior Constable Hogan saw both Mr Kenny and Carl Anderson lying injured beside the Mt Coolon Road, on the same side of the road and not far south of the collision site, where the Widts’ driveway met Mt Coolon Road.  The Suzuki motorcycle was some 37 metres south of where Carl Anderson lay injured.  When Mr Hogan saw them, neither was wearing a helmet; but that was some time after the collision had occurred.

33. Mr Kenny gave evidence as to the fact that he wore a helmet on every occasion when he rode with Carl Anderson. He specifically remembered the helmet he was wearing on the day of the collision because the padding inside was damaged. He recalled that both he and Carl Anderson were wearing helmets when they left Carl Anderson’s grandfather’s house to go out riding for the day. While he was waiting for Carl Anderson and Mr Moss while they were riding around on their motorcycles at Pelican Creek, he recalls sitting on that helmet.

34. Because of his brain injury, Mr Kenny was unable to recall whether or not he was wearing the helmet at the time of the collision. His last recollection until recently was of being the passenger on the motor cycle when it turned onto the bitumen. By the time of trial he had some recollection of noticing the Widts’ residence from the motorcycle. This increased recollection is entirely possible. According to both the neurologist called by the Nominal Defendant, Dr John Cameron, and the neurologist called by the plaintiff, Dr Todman, the period of retrograde amnesia can shrink with time. However he was still unable to specifically recall whether he was wearing a helmet.

35. Carl Anderson’s memory was also affected by the serious head injury he suffered. Although he had no recollection of the collision or of who was wearing a helmet at the time, he could recall that both he and Mr Kenny were wearing helmets when they set off together earlier in the day. If he is correct about this, and there seem no reason to doubt it, then it seems unlikely that they would have lost or mislaid those helmets during the day and more likely than not that they were each still wearing a helmet at the time of the collision.

36. Both Carl Anderson and Paul Kenny suffered from similar head injuries. The neurosurgeon Dr. Leigh Atkinson expressed the opinion in his report of 12 April 2006 that the epidemiological evidence indicates that wearing a helmet reduces the neurotrauma in a large cohort of motorcycle riders. However he said that both riders may have suffered the same injuries even if they were both wearing helmets. There is considerable evidence, he said, that many motorcycle riders die or suffer serous head injuries even when they are wearing helmets and that the presence of a helmet does not exclude severe neurotrauma. He was unable to identify from the head injuries suffered whether either Carl Anderson or Paul Kenny was or was not wearing a motorcycle helmet.

37. I have concluded on the balance of probabilities that both Carl Anderson and Paul Kenny were wearing motorcycle helmets at the time of the collision. Although there may have been chin injuries if the helmets had been properly fastened, I am not satisfied that they did not have their helmets fastened as required. It follows that neither of them contributed to their injuries by a failure to wear a properly fastened motorcycle helmet.

Liability

38. It appears that both Carl Anderson and Clinton Anderson contributed to the collision. As both were riding unregistered motorcycles judgment must be given against the Nominal Defendant to the extent that either of them was liable for injuries suffered by Mr Kenny or Clinton Anderson was liable for the injuries suffered by Carl Anderson. Clinton Anderson was negligent in that he entered Mt Coolon Road from private property and failed to give way to the motorcycle Carl Anderson was riding.^[5]  Although it was about 7.00pm, and twilight when the collision occurred, Clinton Anderson would have seen the Suzuki motorcycle if he had been keeping a proper lookout for on-coming traffic.  There was sufficient light for the on-coming motorcycle to be seen.  It was also negligent for him to be riding a motorcycle at that time without its headlight illuminated.

39. On the other hand, the Suzuki motorcycle was made more difficult to observe because its headlight was not illuminated. It was negligent of Carl Anderson to be riding a motorcycle at the time of day without the headlight illuminated. He was also negligent in riding too fast. He was riding about 30 kilometres per hour over the relevant speed limit which was even more serious at that time of day. Nevertheless he would not have expected an unilluminated motorcycle to come out of a private driveway into his path. In these circumstances, I would attribute liability for the collision 70 per cent to Clinton Anderson and 30 per cent to Carl Anderson.

Quantum

Carl Anderson

40. The quantum of damages with regard to Carl Anderson was agreed between himself and the Nominal Defendant at $584,132.00, made up of $50,000 general damages, $32,132 special damages, $170,000 past economic loss, $6,000 interest on past earnings, $320,000 future economic loss and $6,000 for gratuitous care. This was before reduction for contributory negligence. After taking into account contributory negligence, his damages must be reduced to $408,892.40.

Paul Kenny

41. The evidence in chief as to the quantum of damages of Paul Kenny given by Mr Kenny and his mother Margaret Theaker, were contained in written statements which were tendered pursuant to s 92 of the Evidence Act without objection.  Both were called and made available for cross-examination.

42. Paul Kenny was born on 24 November 1978 so is now 27 years old. Most of his childhood was spent living with his mother, Margaret Theaker, and his step-father. He attended a number of primary schools and commenced Grade 8 at Collinsville State High School. He spent Grade 9 at Kepnock State High School in Bundaberg and then returned to Collinsville State High School at the age of 15 to commence Year 10. He had only been enrolled at the school for a short while before the collision. Prior to his injuries in 1994, he earned some money mowing lawns and in Bundaberg he worked at bakery on Saturday nights for a number of months. His school records show that he performed poorly at school prior to his injuries.

43. Mr Kenny has an older step-brother and step-sister who were born in 1970 and 1972. He has three full brothers, one of whom, Kenneth, was born on 4 June 1975; and the other two, Stephen and Damian, were born on 6 February 1977. He also has a younger step-brother and step-sister who born in 1984 and 1986 respectively. His older brother Kenneth has worked as a storeman and currently works on a boat out of Darwin. He was injured in a motorcycle accident in 2002 but was able to return to work. Both Damian and Stephen work as plant operators in mines.

Immediate injuries

44. Mr Kenny suffered a fractured right ankle, a fractured right femur, a severe head and brain injury, a fractured skull, hearing loss and an injury to his spine. He was immediately taken to the Collinsville Hospital where he was intubated and stabilised. He was then emergency airlifted to Townsville because of the severity of his injuries. He was an inpatient at the Townsville General Hospital from the time of the accident until 12 May 1994. He had physiotherapy and speech therapy at the hospital and also some school lessons. There was evidence that his personality had changed even while he was at the hospital. He had mild to moderate impairment of his language skills.

45. He returned to the Townsville General Hospital on 16 September 1994 to have a pin in his femur removed. He was then transferred back to the Collinsville Hospital where he underwent physiotherapy and speech therapy as an outpatient. He remained on crutches for an extended period due to his fractured femur. Mr Kenny said that he recommenced school in Collinsville approximately two weeks after he came back to Collinsville and gradually built up his hours of attendance with one on one teaching sessions as well as some normal lessons. He had difficulty concentrating and was easily distracted. He was disruptive in class. He was also easily fatigued. His memory was poor and he was irritable.

46. Later in 1994 Mr Kenny had some difficulties with his step-father and moved to Brisbane to live with his step-brother, Anthony Livesey. At the end of 1994 his mother and step-father moved back to Brisbane. They then separated and he moved back home to live with his mother. In 1995 he attempted to return to school at Balmoral State High School but again found it difficult to concentrate and could not understand the school work so he dropped out of school with no qualifications. His intellectual and memory difficulties were apparent when he gave his evidence.

47. In 1997 he moved out of home again and was living with friends. He spent his days watching television and occasionally going down to the CES to see what jobs were available. As most positions required some educational or other qualifications or experience, he did not apply for them.

Brain injury

48. Mr Kenny suffered from diffuse axonal injury, which is a diffuse injury to the brain. He suffered from headaches after the accident and continued to take panadine forte until about 2000. His headaches are not so severe now and he takes Panadol when he has a headache. Since the accident he has had a great deal of difficulty with concentration and with acting on his decisions. He has a very short attention span and is very forgetful. He has difficulty in reading because of his difficulty in understanding or remembering what he has read. His slowness in reading was demonstrated when he was asked to read out loud a short passage from an affidavit in court.

49. He still has difficulty in social situations and is usually left sitting on his own even if he goes out in a group. His concentration and memory have remained affected by his brain injury. He reports being unable to process information and make decisions.

Hearing Loss

50. The report of Dr Black, an ear, nose and throat surgeon, shows that Mr Kenny suffered a significant hearing loss in his left ear as a result of the collision. He attended the Ipswich Hospital on a few occasions to see a hearing specialist. He had no hearing problems before the accident. His severe post-accident hearing loss which was secondary to his fractured skull was confirmed by Dr Parker, another ear, nose and throat surgeon. After the accident he had a continuous ringing in his ears and occasional severe pain. The ringing in his ears continues and affects his concentration when it is more intense. He finds it difficult to hear and often has to ask people to repeat what they have said. The ringing in his ears sometimes disturbs his sleep. His speech is not clear and sometimes people say they have difficulty understanding what he is saying. He requires a hearing aid. His hearing loss adversely affects his capacity to work in the mining industry and as a storeman or bar attendant.

Speech difficulties

A speech therapist, Ellie Skoien, examined Mr Kenny on 16 April 1997.  She said that he had moderately impaired speech, language and communication skills which were consistent with organic brain dysfunction.  She said that he had had difficulties prior to the accident nevertheless, in her opinion, it was most probable that his speech had deteriorated since the accident and his ability to use language had been further affected by his head injury in that he had some difficulty in word finding and planning and organising of verbal expression.  He also had a moderately to severely impaired short term memory for verbal information.  Those deficits were consistent with diffuse organic brain injury and in her opinion those deficits were permanent but could benefit from further private speech therapy.

Leg injury

51. Prior to his injuries he enjoyed playing rugby league and running. He had represented the school in North Queensland schools cross country competition and also in swimming competitions. When he moved to Brisbane in 1995 his leg was still painful walking or standing for any length of time. The effects of that injury had almost completely resolved by the time of trial. Dr Toft, an orthopaedic surgeon, reported he has occasional sharp pain in the right groin region which “stops him in his tracks.” The symptoms go very quickly and he is able to continue with whatever he is doing. Dr. Toft believed these symptoms were “a residua of the femoral shaft fracture and the resultant surgery”. His right leg is longer than the left because of the femur lengthening as a consequence of the fracture but this does not cause any functional disability. He has a surgical scar over the outer side of the hip which is slightly sensitive. He has other scars on his scalp, left shoulder, right elbow and on his legs and while they are permanent, none has any particular significance.

Gratuitous care

52. The evidence showed that Mr Kenny’s mother, Margaret Theaker, provided and will have to continue to provide gratuitous care to Mr Kenny, above and beyond that expected of the mother of a 15 year old boy who is now an adult of 27 years of age. The calculations are set out in a spreadsheet submitted by Mr Kenny’s counsel. The hourly rates for such care, although not the extent of the care provided or to be provided, were admitted by the Nominal Defendant. I am satisfied that the claim set out therein was properly made, except for a period following the 1997 injuries to which I will shortly refer. The amount for past care will be varied to delete the amount claimed for one year after the 1997 injuries and to reduce by one half the amount claimed for the two following years and to take the award up to the date of the judgment. I will allow a global amount for future care.

53. It was agreed at trial that his life expectancy was 51.5 years from the date of trial.

Subsequent injuries

1996

54. In September 1996 Mr Kenny was assaulted by gatecrashers at a party. He was knocked out and sustained a fractured cheek bone which required surgery at the Ipswich Hospital. He did not suffer any ongoing effects as a result of the assault.

1997

55. In August 1997 Paul Kenny was involved in a motor vehicle accident of some significance (the “1997 accident”). He suffered a crush fracture of a lumbar vertebra and a laceration to his liver and to his gall bladder (the “1997 injuries”). Fortunately he did not suffer any further head or brain injury. He developed an infection and required surgery to repair the liver and gall bladder. He wore a back brace from the time of the 1997 accident until January 1998. He suffered constant lower back pain which was easily aggravated and for which he took painkillers and undertook physiotherapy. He has ongoing symptoms of back pain with radiation into the lower limbs which relates entirely to this injury and causes some limitation on his general mobility.

56. He claimed damages for the 1997 injuries and settled the claim for $340,000 exclusive of costs and outlays. He received a net amount of $230,000 in May 2003 in settlement of that claim. It was a total amount with no division, even notionally, for various heads of damage. He lost it all within about 12 months. He naively entered into a foolish relationship with a young woman whom he met when he hired her from an escort agency. As it turned out, she was only 16. She gave birth to his daughter in June 2004. The money was spent on drugs and motor vehicles. The relationship then ended acrimoniously.

2004

57. He subsequently suffered a minor whiplash injury on the Story Bridge in October 2004 for which he did not seek medical treatment. It has had no impact on this claim.

Pre-existing conditions

58. He has impaired vision in his left eye which is a congenital condition and which has no adverse effect on him. Dr Heffernan, an ophthalmologist, expressed the opinion that many people with that condition lead quite normal working, social and recreational lives and engage in a wide range of occupations and sporting activities.

Effect of his injuries on Paul Kenny’s capacity to work

59. He has been commercially unemployable since the original motorcycle collision which was the subject of this action. He has endeavoured to work, for example, at the Bundaberg City Council nursery, where he was placed by CRS Australia and Work Support Employment Services, but has been unable to retain any employment. This seems to have been in part due to difficulties caused by his brain injury and in part due to physical difficulties. The predominant cause appears to have been the personality, cognitive and motivational difficulties which arose from his brain injury. He worked there between 17 July and 5 September 2000 earning a total of $1,935.

60. He has received $34,500 from Centrelink which will have to be repaid. This must be deducted from the amount awarded from past economic loss for the calculation of interest on that loss.

61. In 2004 Mr Kenny commenced a computer course at the Gold Coast Institute of TAFE. His then girlfriend was also enrolled in the course, did his essays and helped him to understand parts of the course which he would not otherwise have been able to understand. As referred to earlier, his then girlfriend gave birth to a child in June 2004. She did not wish to return to the TAFE course. He did not think he could understand the course without her help and at her insistence he did not return to complete the course.

62. As to the nature of the employment that he might have undertaken had he not been injured, Dr Atkinson and Dr Field were of the view that he could have undertaken the same employment as his brothers in the mining industry but he was unable to undertake such employment because of his head injury. He was certainly keen to follow in their footsteps. The statements of his brothers, Stephen Kenny and Damien Kenny, were admitted by consent. They were not required for cross-examination. Also admitted by consent were letters from Stephen’s employers, Placer Dome Asia Pacific Ltd and Placer Dome Kalgoorlie Ltd. At the time of trial Stephen Kenny was earning $82,609 per annum.

63. An orthopaedic surgeon, Dr John Fraser, said that the orthopaedic injury suffered in the 1997 accident would have rendered him unfit for work for a period of six months and would continue to limit his capacity for heavy manual work or work that requires repetitive bending or the prolonged maintenance of a single posture. He was not of the opinion that the orthopaedic injury suffered in the 1994 accident would have reduced his capacity for work in the future although it would have made him unfit for work for a period of nine months.

64. As a result of the crush fracture to the L 1 vertebra, Dr Cameron recommended that Mr Kenny “avoid heavy manual activities such as heavy lifting and working in confined spaces as this might aggravate his back discomfort”. Dr Fraser considered in a report of 15 December 2000 that:

“the orthopaedic injury suffered on 13 August 1997 will limit his capacity for heavy manual work, or work that requires repetitive bending, lifting or the prolonged maintenance of a single posture.  If such activities can be avoided, he will be capable of working in a lighter sedentary capacity, and in such a position his working life would not be foreshortened.”

In his report of 1 April 2000, another orthopaedic surgeon, Dr Morgan, considered that Mr Kenny’s lumbar spine injury restricted him to employment which was sedentary in nature.  Dr Morgan had seen Mr Kenny on 14 September 1995 and did not think that his orthopaedic incapacities at that time would significantly interfere with his ability to obtain and maintain satisfactory future employment.

65. In his report of 19 October 2001, Dr Toft said that Mr Kenny’s ongoing symptoms of back pain with radiation into the lower links related entirely to his 1997 injury and that those residual symptoms limited his general mobility.

66. The occupational therapist Stephanie Johnson after reviewing Mr Kenny for the Nominal Defendant produced a report dated 20 May 2002 where she looked at various occupations that Mr Kenny might have been able to undertake but was no longer able to undertake. As for work in the mining industry she considered that his head injury would have impacted on his ability to gain employment in this industry and his current level of physical capacity would preclude him from maintaining this form of employment. The same was true of work in the baking industry, work as a storeman, work as a nursery hand, and work as a cook. As for work as a bar attendant, Ms Johnson took the view that the level of physical demand for this occupation was light and it was therefore considered that Mr Kenny possessed the physical capacity to undertake duties in this occupation however it was not considered suitable for him due to his head injury.

67. Dr. Maureen Field, a clinical neuropsychologist, first saw Paul Kenny for assessment on 20 June 1995. After detailed testing she concluded that it was probable that Mr Kenny was significantly disadvantaged in terms of his work future as a result of the interruption to his studies as well as the persisting neuropsychological deficits. She was of the view that, as his predicted pre-accident IQ was average, it seems likely that he would have been capable of moving into an apprenticeship if the accident had not occurred. She thought that he was motivated to achieve but was prevented by his cognitive difficulties. If the memory and learning deficits persisted, the prognosis would appear to be poor.

68. Dr. Field next assessed Mr Kenny on 14 September 2000. She reported that responses on the personality assessment inventory (PAI) indicated that he was concerned about physical functioning and health matters and that he perceived himself as being handicapped by his poor health. Difficulties with thought processes including confusion, distractibility, poor concentration and poor verbal communication were also problems for him. His self-concept and social skills were likely to be variable and he viewed his social supports as being lower than those of the average adult. Dr Field thought that his profile suggested an adjustment disorder with cognitive disorder.

69. Dr Field noted that Mr Kenny had some scholastic difficulties prior to the head injury he suffered in 1994 but that it was probable that that severe head injury, at a critical time in his schooling, further compounded his difficulties as well as adding new ones. She said that he has a number of executive type disturbances that would interfere with his capacity to process information, to persist with tasks or to plan and organise what he needed to do. She said it was not surprising that he was unable to continue normal school work after the accident in 1994, even doing an alternative Year 11 course as recommended by the school guidance officer. He has not been able to obtain a junior certificate and was unable to secure permanent fulltime employment after he left school in 1995.

70. Dr Field was of the view that he would have been capable of the same type of work as his brothers had he not suffered the head injury in 1994. Dr Field has compared his school results to that of his brother Kenneth in coming to the view that he would have had similar academic outcomes to Kenneth had he been able to continue at school. In her view the nature and extent of Mr Kenny’s neuropsychological difficulties were now likely to preclude meaningful employment in the long term. She said that he was not psychologically robust and the accident would have served to compound this.

71. Dr Don Todman, a neurologist, first saw and reported on Mr Kenny on 13 October 2005. Dr Todman’s conclusion was that Mr Kenny’s continuing symptoms of headaches, neck pain and problems with memory and cognitive functions could be directly attributed to the accident in 1994. The mechanism was a closed head injury with diffuse axonal injury. The memory and cognitive problems which he has had since then affect him in all aspects of his life and they have been a significant factor in his inability to complete his education or engage in regular employment. None of his subsequent injuries have had a significant bearing on the head injury and cognitive impairment. An MRI scan performed at Dr Todman’s request showed results consistent with the brain injury from the trauma suffered in the 1994 accident. Dr Todman also reported that Mr Kenny had low back pain which was present on a continuous daily basis and was aggravated by prolonged sitting, bending, twisting or lifting. This was attributable to the 1997 injury.

72. An occupational therapist, Lesley Stephenson, examined Mr Kenny on 8 November 1999. She summarised her opinion as to his employability:

“Because of his educational performance prior to his injury in 1994 (limited to very limited achievement in most subjects), Mr Kenny would have been restricted to pursuing mainly manual unskilled work in his life.  Options would have included labouring, factory work, machinery operator, or in his area of interest in the mines.

Following his accident in 1994, Mr Kenny would have been limited to structured employment in a supported environment, owing to his head injury.  He would have needed to work in a job where he was given direction and did not need to make independent decisions.  He would have relied on having little or no stress or pressure.  He would have been capable of undertaking a range of labouring jobs of a routine nature.

Mr Kenny’s capacity to work in labouring jobs is now been further reduced by his accident in August 1997, particularly in light of residual problems with lifting, bending, standing for long periods, pushing every weight, and fatigue.  He is not prohibited from driving, but currently does not have a licence or a vehicle.  He is currently considered capable of structured, unskilled labour where he has a high degree of supervision and no independent decision making.”

73. Ms Stephenson reviewed further written material on Mr Kenny on 7 April 2006. Ms Stephenson gave a summary of his occupational limitations. She said:

“In addition to the specific problems he demonstrated on attempting to work in 2000, (poor grooming, irregular and poor attendance, easily led astray, requirement for high level of support) he has a range of occupational barriers:

• Long history of receipt of disability support pension, since 1996 with unsuccessful attempt at engaging in unskilled work.
• Pre-existing blurring of the left eye.
• Hearing impairment of the left ear.
• Personality changes.
• Memory deficits.
• Low educational achievements.
• Slow speech and poor articulation.
• Neuropsychological difficulties including difficulties with thought processes, including confusion, destractibility, poor concentration and poor verbal communication; variable social skills and self-concept.”

She concluded that of the occupational barriers he had, his behavioural problems were of most concern.  She thought it was unlikely that he would be able to sustain employment in the future.

74. Dr Atkinson is a neurosurgeon who saw Paul Kenny on a number of occasions: 20 July 1995, 19 December 1996, 14 September 2000 and 24 August 2005. As at 23 December 1996, Dr Atkinson was of the opinion that notwithstanding any pre-existing features his head injury and hearing impairment as well as some blunting of cognitive function from the accident meant that his employment possibilities were not good and Dr Atkinson had reservations as to his capacity to reliably control any financial awards that might result from this litigation.

75. When Dr Atkinson saw Mr Kenny on 14 September 2000 after the 1997 injuries, he took a history from Mr Kenny as to what had happened in that accident and his present symptoms. Dr Atkinson said that Mr Kenny presented as a man with a cognitively low normal intelligence and that emotionally he seemed flat. He spoke in a flat monotone with a slow articulation and there was general flatness of affect. Overall, Dr Atkinson said, there was a blunting of cognitive function which dated from his injury in 1994. He considered that Mr Kenny had deteriorated intellectually following the 1994 motorcycle accident. He remained of the view that on account of the injuries suffered in 1994 Mr Kenny was commercially unemployable.

76. Dr Atkinson said that he agreed with Dr Field’s report regarding the likely future employment of Mr Kenny, in particular that he would have been likely to have obtained similar work to that of his brothers. He also reiterated that he was of the view that the 1994 injury was predominantly responsible for Mr Kenny’s long term unemployment. He confirmed in conclusion that despite Mr Kenny’s dysfunctional educational background and despite his environment and social background, the head injury appeared to be the event that caused him to be commercially unemployable.

77. Dr Atkinson again reported on Mr Kenny on 29 August 2005. He considered that Mr Kenny suffered from a severe head injury in the 1994 accident with likely impairment of cognitive function and personality changes. He had no later brain damage. He was of the opinion that Mr Kenny was commercially unemployable as a result of the 1994 accident and considered that subtle behavioural changes probably further complicated his capacity for employment.

78. An MRI of Mr Kenny’s brain carried out on 19 October 2005 showed:

“multiple foci of white matter signal abnormality which are predominantly in the periventricular white matter.  There is marked loss of volume involving the posterior body of the splenium of the corpus callosum.  The thinned corpus callosum has a linear area of high signal … There are some peripheral white matter lesions as well seen high up within the left frontal lobe.

On the coronial gradient echo sequence there are multiple foci of low signal consistent with previous foci on haemorrhage.

…

The overall appearance is that of a previous shear-type diffuse external injury.”

79. In a supplementary report dated 20 February 2006, Dr Atkinson reported on the MRI carried out in October 2005. He considered that Mr Kenny had a class 1 impairment and clinical dementia with a clinical dementia rating of 14 per cent. Dr Atkinson noted in that report that it was unlikely that the subsequent accidents in 1996, 1997 or 2004 contributed in any way to his current mental status problems.

80. Dr Atkinson, in a further supplementary report on 12 April 2006, reported that Mr Kenny was impulsive because of his head injury and was vulnerable and should not control his own affairs. He considered he was at risk of further accidents in the future. He considered that the 1994 accident was the major cause of his occupational barriers and that he would have been suited to non-skilled labouring employment if he had not had the 1994 injury. He said that the cause of his volitional or motivational problems was related to his head injury and that those problems were very common after acquired brain injury and were not treatable.

81. I have concluded that Mr Kenny was made commercially unemployable by the 1994 motor vehicle accident which is the subject of the claim in this suit. Had he not suffered the injuries in 1994, he would most likely have taken up employment in the mining industry similar to that undertaken by his brothers, Stephen and Damian. His head injury precluded that. However the injuries he suffered in 1997 would have prevented his continuing in that type of employment at least for a time until that injury settled. Once the 1997 injuries settled, he would have been able to undertake many different types of employment had it not been for the head injury suffered in 1994. There was no evidence that the 1997 injuries, absent the 1994 injuries, would have made him unemployable. However the 1997 injuries alone would have reduced his capacity, at least for a time, to be gainfully employed. The medical evidence on the extent of that incapacity was not all consistent but did suggest that he would not have been able to work at all for some time and would thereafter have reduced working capacity.

82. In Nilon v Bezzina,^[6] which involved a plaintiff who had been injured in accidents which had occurred six years apart, McPherson J (as his Honour then was) referred with approval^[7] to the judgment of Fenton Atkinson LJ in the English Court of Appeal in Baker v Willoughby^[8] where his Lordship said:

“the first tortfeasor can be made to pay compensation for loss of future earnings only for the period during which the pain, disability, loss of enjoyment of life or earning capacity caused by him continue to exist.”

An award of damages is usually discounted for contingencies such as the possibility that a person may suffer later injuries which would otherwise reduce his or her enjoyment of life or earning capacity.  Once such an injury has in fact occurred, it must be taken account of in the amount of damages actually awarded.

83. In my view the loss of earnings and of earning capacity should be calculated on the basis that he would have stayed at school or TAFE, as did his brothers, to the end of Year 12 which would have been to the end of 1996. He would then have been able to work in high earning manual work like his brothers until August 1997 when he was injured in the 1997 motor vehicle accident. He would then not have been able to work at all for about 12 months. Thereafter, because of the effects of the back injury suffered in the 1997 accident, he would not have been able to undertake heavy manual work but would certainly have been able to work in other occupations, such as being a bar attendant, for a normal working life.

84. The net present weekly wage of a bar attendant is $439.20. That is the figure that should be used to calculate loss of income earning capacity. It is appropriate to consider that he would have had a working life of another 35 years. The multiplier to discount for its present receipt is 876.8. That would amount to $385,090.56. This should be discounted by 20 percent to allow for contingencies that would not have allowed him to complete that working life. He should be awarded $308,072.44 for loss of earning capacity.

Amount of damages

85. The quantum of damages should be:

1. Pain and suffering              $100,000.00

2. Interest on $40,000 at two per cent for 12½ yrs              $10,000.00

3. Past Economic Loss

01/01/97-13/08/97 = 32 weeks x $800$25,600.00

14/08/98-22/09/06

14/08/98-01/09/98 $270.90 x 2 weeks$541.80

01/09/98-23/11/98 $279.70 x 12 weeks$3,356.40

24/11/98-31/08/99 $312.25 x 40 weeks$12,490.00

01/09/99-23/11/99 $320.65 x 12 weeks$3,847.80

24/11/99-30/06/00 $349.05 x 31 weeks$10,820.55

01/07/00-31/08/00 $359.20 x 9 weeks$3,232.80

01/09/00-31/08/01 $370.20 x 52 weeks$19,250.40

01/09/01-10/11/02 $378.20 x 62 weeks$23,448.40

11/11/02-31/08/03 $393.20 x 41 weeks$16,121.20

01/09/03-31/08/04 $406.20 x 52 weeks$21,122.40

01/09/04-31/08/05 $419.20 x 52 weeks$21,798.40

01/09/05-22/09/06 $439.20 x 55 weeks$24,156.00

$185,786.15

Super: 8% of P.E.L.$14,862.89

Less wages received$1,935.00

Less super received 8% of gross$154.80

$198,559.24

4. Interest on Past Economic Loss

$198,559.24 - $34,500 x .05 x 12.5$102,537.02

5. Future economic loss              $308,072.44

6. Superannuation 9%              $27,726.52

7. Past Domestic Assistance              $18,156.60

8. Interest on Past Domestic Assistance              $11,347.88

9. Future Care and Assistance              $50,000.00

10. Future Rehab expenses              $18,887.46

11. Future Pharmaceuticals              $5,000.00

12. Past Expenses              $28,894.52

$879,181.68

Protection order and sanction

86. Both plaintiffs, Mr Kenny^[9] and Carl Anderson,^[10] require a protection order because of their brain injuries.  The cost of a private trustee to administer their estates depends on the final amount of quantum determined and so will be the subject of submissions after judgment.

87. It is also necessary for the court to sanction the damages agreed between Carl Anderson and the Nominal Defendant and I do so. His award is less than that awarded to Mr Kenny primarily because there has been a reduction for contributory negligence and Carl Anderson has not been as disadvantaged in the labour market as Paul Kenny.

Claim by Nominal Defendant

88. The Nominal Defendant sought to recover the damages, costs and expenses it had incurred in settling a claim by Heather Brooker, and any damages, costs and expenses it might be liable to pay as a result of the claims by Paul Kenny and Carl Anderson against the owners and/or the drivers of the unregistered motorcycles. As I have previously found, the drivers were Carl Anderson and Clinton Anderson. It was not disputed that the motorcycles were owned by William Anderson and Clinton Anderson respectively.

89. The claim by Heather Brooker was settled by the Nominal Defendant on 25 August 1998 when the Nominal Defendant agreed to pay her $110,000 together with the party and party costs of her action. The total costs incurred by the Nominal Defendant in that claim were $127,175.10, being damages of $110,000, Ms Brooker’s legal costs of $10,751.50 and the Nominal Defendant’s costs of $6,423.60. I am satisfied from the affidavit filed by a solicitor from O'Shea Corser and Wadley who acted for the Nominal Defendant that the amount for which it was settled was reasonable.

90. Any debt with regard to any liabilities of the Nominal Defendant arose under the 1936 Act only once payment has been made by the Nominal Defendant. The question therefore arises whether the liability in debt to the Nominal Defendant and the defences available to the claim for debt were governed by the legislation as it was at the time of the collision or the legislation as it was at the time that the liability to pay the debt accrued, that is when the claim was settled or damages were paid pursuant to a judgment of the court.

91. By s 102 of the 1994 Act, the 1936 Act was repealed without reservation. There are however specific transitional provisions in the 1994 Act. The relevant sections are s 104 and s 105 which provide as follows:

“104Personal injury claims

…

(2)If personal injury arises out of a motor vehicle accident happening before the commencement of this Act, a claim for the personal injury must be dealt with as if this Act had not been enacted.

…

(4)This section is enacted to remove any doubt and does not affect the operation of the Act Interpretation Act 1954, section 20A in relation to section 104 of this Act as originally enacted after the expiry of that section on 31 December 1995.

106Nominal Defendant

(1)The Nominal Defendant under this Act succeeds to rights and liabilities of the Nominal Defendant under the former Act for personal injury arising out a motor vehicle accidents that happened before the commencement of this Act.”

92. These transitional provisions do not specifically relate to any debt incurred to the Nominal Defendant. The rights and liabilities that survive are those “for personal injury” not any relating to a debt or, as in this case, a contingency which might give rise to a debt. As I previously noted the right of the Nominal Defendant under s 4G(1) of the 1936 Act to recover damages and costs as a debt could not arise unless and until a settlement was paid or judgment was recovered against it.  Neither of those eventualities occurred before the repeal of the 1936 Act.  There was no relevant “right for personal injury” for the Nominal Defendant to succeed to.

93. The Nominal Defendant in its counterclaim relied on s 4G of the 1936 Act or s 60 of the 1994 Act in the alternative. Section 20 of the Acts Interpretation Act 1954 might be thought to be relevant to a decision as to which provision applies in this case.  Section 20 provides, inter alia:

“(2)The repeal or amendment of an Act does not –

…

(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or

(c)affect a right privilege or liability acquired, accrued or incurred under the Act; or

…

(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c)…

(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced …, as if the repeal or amendment had not happened.”

However the right to claim a debt did not arise before the 1936 Act was repealed. The then inchoate right to claim in debt, which depended on events that might or might not occur, and had not occurred before the Act was repealed, was extinguished by the repeal of the Act.^[11]

94. The Nominal Defendant initially submitted that its rights under the 1936 Act did not survive that Act’s repeal and submitted that its claim in debt was governed by s 60 of the 1994 Act. However, its final submissions were that it could rely on either the 1936 Act or, in the alternative, the 1994 Act.

95. In both 1998 and 2006, the Nominal Defendant’s existence was and is governed by Pt 2 Div 4 of the 1994 Act. Its right to recover any costs reasonably incurred by it with regard to a claim for personal injury is governed by s 60 of the 1994 Act, which also sets out the defences available to the owner and the driver. Section 60 provides:

“Nominal Defendant’s rights of recourse for uninsured vehicles

(1)If personal injury arises out of a motor vehicle accident involving an uninsured vehicle, the Nominal Defendant may recover, as a debt, from the owner or driver of the vehicle (or both) any costs reasonably incurred by the Nominal Defendant on a claim for the personal injury.

(2)It is a defence to an action by the Nominal Defendant under this section –

(a)as far as recovery is sought against the owner – for the owner to prove –

(i)that the motor vehicle was driven without the owner’s authority; or

(ii)that the owner believed on reasonable grounds that the motor vehicle was insured; and

(b)as far as recovery is sought against the driver – for the driver to prove that the driver believed on reasonable grounds that the driver had the owner’s consent to drive the motor vehicle and that the motor vehicle was insured.

(3)The Nominal Defendant may bring a proceeding for recovery of costs under this section before the costs have been actually paid in full and, in that case, a judgment for recovery of costs may provide that, as far as the costs have not been actually paid, the right to recover the costs is contingent on payment.

(4)This section does not affect rights of recovery that the Nominal Defendant may have, apart from this section, against the insured person.”

96. This section is conditional. The Nominal Defendant’s right to recover in debt only arises “if personal injury arises out of a motor vehicle accident involving an uninsured vehicle.” Those terms do not appear to cover a personal injury arising out of a motor vehicle accident involving an uninsured vehicle which happened prior to the commencement of the 1994 Act. A “motor vehicle accident” is defined in s 4 of the 1994 Act to mean “an incident from which a liability from personal injury arises that is covered by insurance under the statutory insurance scheme.” “Statutory insurance scheme” is itself defined to mean “the insurance scheme established by this Act.” That interpretation is confirmed by the transitional provisions. Section 60 applies only to an action for debt arising when the personal injury is the result of a motor vehicle accident that occurred after that commencement of the 1994 Act.

97. As Mr White quite properly initially submitted on behalf of the Nominal Defendant, the transitional provisions do not apply to maintain any right to claim an action in debt based on the 1936 Act. It follows that there is no longer any basis for a claim for a statutory debt for the payment of the damages and costs of the Nominal Defendant against the owner or driver of an uninsured vehicle for a motor accident that occurred before the introduction of the 1994 Act. This is perhaps unsurprising given the time that has elapsed since the introduction of the 1994 Act. The Nominal Defendant must therefore fail in its action in debt against the owners and drivers of the uninsured motorcycles involved in this case.

98. In case I should be wrong about this, I will consider the facts that underlie the statutory defences available under s 60 of the 1994 Act and s 4G of the 1936 Act to determine whether and if so, to what extent, they would apply to excuse any liability for statutory debt.

Authority to ride the motorcycle

99. Mr Moss gave evidence that he had seen Carl Anderson riding his father’s motorcycle a couple of times before the collision. That was all off-road riding, near the old speedway grounds and out near the town dump. He knew that Carl Anderson stayed at his grandparents’ house and that to get from there to where Mr Moss saw him he would have ridden on a bike track or followed drains, that is he would not have been on public roads but he would have had to cross a couple of public roads. He said on the day in question they rode on a public road because it was the only way to get to Blue Rock but that it was unusual for them to ride on a public road.

100. Carl Anderson said in evidence that he had been riding motorcycles around the Collinsville area since he was three years old when he received a Peewee 50cc child’s motorcycle for Christmas. Carl Anderson was brought up by his father, William Anderson, as a sole parent. Carl lived at his grandparents’ house during the week while his father worked permanent nightshift. At weekends he lived at his father’s house.

101. According to his grandfather, Carl rode on BMX tracks. There were many dirt tracks, creek banks and off road areas and even made roads often had dirt tracks beside them which could be used by off-road motorcyclists. When he could not ride off road then he would use public roads.

102. He was riding his father’s motorcycle on the day of the collision and had been for the past week or two because he had sold his own motorcycle to Mr Moss. Before that, he had occasionally ridden his father’s motorcycle. The keys to the motorcycles were kept on a ledge under his father’s house so that both Carl Anderson and William Anderson knew where they were when they wanted to ride a motorcycle. The motorcycles were kept at his father’s house. Occasionally he would ride from his father’s house to his grandparents’ house. To do so he would have to cross a public roadway but not apparently ride along a public roadway.

103. Carl Anderson believed that he had his father’s authority to ride on public roadways. However it does not appear he ever had an explicit conversation about it. Carl Anderson appears to have assumed that the freedom he was given to ride the motorcycle meant that he had his father’s authority to ride it on the public highway. He said they also sometimes rode together on the public highway and sometimes he told his father how he got from one place to another.

104. However, Mr William Anderson was quite clear in his evidence that Carl did not have his authority to ride the motorcycle on the roadway on the evening when the collision occurred. He knew that occasionally his son rode on roadways but William Anderson said that Carl was supposed to ride off road and push the motorcycle across roadways. William Anderson said he occasionally rode behind his son to check that his brake lights were working but that they had never ridden on a bitumen road together. I accept the truth of this evidence. On the day of the collision, William Anderson thought that the boys were going to Pelican Creek on back tracks. He did not know and had not given permission to Carl to drive on public roads on that day.

105. Carl Anderson knew that the Suzuki motorcycle he was riding on the day of the collision had a numberplate and he therefore believed it was registered. That appears to be reasonable grounds to believe the motorcycle was registered and therefore subject to statutory compulsory third party insurance.

106. William Anderson also believed that the Suzuki motorcycle was insured. This was not pleaded in the defence to his counterclaim but I allowed an amendment to plead it. He knew that it was about time to pay the registration. He did not find out until about a year later when he spoke to a solicitor that he was not insured as the motorcycle was not registered. He always believed that there was some time allowed even after the due date to pay the registration. His belief that he was insured appears to have been reasonable. Under s 3(5) of the 1936 Act, he had 30 days’ grace in which to renew the registration and therefore his third party insurance. Although it could not have affected the state of his belief at the time of the collision, he was told by a police officer in Townsville that he should not worry as he was covered by third party insurance.

107. Mr William Anderson struck me as a very honest witness. He was an ordinary working man doing his best in this difficult legal case. He was stoical and reluctant to be seen to complain; but he told me quite straightforwardly that he did not have legal representation because he could not afford it and also because he found the case emotionally difficult. This was understandable. His only son, whom he had raised as a sole parent, was grievously injured and William Anderson was facing a huge potential liability.

108. I am satisfied that Carl Anderson believed on reasonable grounds at the time he was riding the Suzuki motorcycle that he had his father’s authority to ride it and that he also believed on reasonable grounds that the motorcycle was registered and therefore insured. I am also satisfied that Carl Anderson did not in fact have his father’s authority to ride the Suzuki at the time of the collision. I am also satisfied that William Anderson believed on reasonable grounds that the Suzuki motorcycle was insured. Each of them has therefore satisfied me that he would have a defence to an action in debt by the Nominal Defendant whether under the 1936 Act or the 1994 Act.

Conclusion

109. The Nominal Defendant should be ordered to pay damages to Paul Kenny the amount of $879,181.68 in matter no S222/02; the Nominal Defendant should be ordered to pay damages to Carl Anderson the sum of $408,892.40 in matter no S303/00.  The Nominal Defendant’s counterclaims against Paul Kenny, Carl Anderson and William Anderson are dismissed.  I shall hear submissions as to costs, the identity of the trustees and on the amounts to be awarded for the costs of private trustees to administer the awards of damages made in favour of Carl Anderson and Paul Kenny.  I direct that the parties make any submissions in writing within 14 days of this decision.