Schimke v Clements[2011] QSC 182

SUPREME COURT OF QUEENSLAND 

1. The plaintiff’s husband was killed on 2 February 2008 when the car he was driving collided with a trailer being towed by the first defendant’s Mitsubishi Pajero vehicle (“the Pajero”). The point of impact was about 15 metres to the north of Horse Trough Bridge on the Gatton-Clifton Road (“the bridge”).  The bridge is a single lane bridge that does not permit vehicles to pass on it or on the immediate approaches to it.  There is a “Give Way” sign to the south of the bridge.  The deceased’s vehicle passed this sign.  After passing the sign it travelled approximately 25 metres to the start of the bridge and across the length of the bridge (18.4 metres). 

2. The Pajero was travelling in the opposite direction. A sign on the approaches to the bridge stated “No Overtaking or Passing” to drivers travelling in that direction. The plaintiff’s case is that the first defendant failed to keep a proper lookout, was travelling at a speed that was excessive in the circumstances and failed to slow to such a speed as would allow the Pajero and the trailer to be brought safely to a halt. The first defendant braked heavily, causing the Pajero to skid and the trailer to jack-knife, so that the trailer collided with the deceased’s car.

3. The point of impact between the deceased’s Datsun car and first defendant’s trailer was estimated by police who investigated the collision to be 14.58 metres to the north of the bridge.

4. The defendants’ case is that as the deceased’s car approached the Give Way sign it appeared to be slowing in a manner consistent with giving way, that the Pajero was travelling at about 60 kilometres per hour at the time and that the first defendant reasonably believed that he was being accorded right of way. However, the deceased’s car proceeded past the Give Way sign and onto the bridge.  The first defendant then immediately braked to bring the Pajero and trailer to an emergency stop.  The second defendant pleads that the deceased did not brake or slow down.

5. The defendants contend that the first defendant was not negligent at all and that the collision was caused solely by the negligence of the deceased.

6. The plaintiff claims general damages for personal injury relating to a psychiatric injury, namely an adjustment disorder with depressed mood, and special damages for anti-depressant drugs that she has been prescribed. She also brings a “dependency” claim. Before the accident the plaintiff and her husband lived together as farmers on a property at Caffey, which is near Gatton. They worked hard. They kept cattle and grew crops. Apart from drought years, they grew potatoes and harvested them without outside assistance. Without her hard-working husband the plaintiff has been unable to grow a potato crop or keep the farm and its stock in the same condition. It has deteriorated despite the plaintiff’s continuing hard work in keeping it going. She has had to pay others to help with fencing, baling and other tasks that her husband used to perform. The plaintiff claims damages for the loss of the pecuniary benefit of the deceased’s work on their farm and the income he was able to earn off the farm during drought years. She also claims for loss of services to the maintenance of the farm which was their home for 31 years, and for services in producing food for their personal consumption.

The collision

7. On Saturday, 2 February 2008 the deceased was returning from work at Stanthorpe where he had been employed cutting grapes. During drought years he had found work each February cutting grapes for a farmer at Stanthorpe. He telephoned his wife from Warwick to tell her that he was on his way home and would be there in about an hour.  His way home took him along the Gatton-Clifton Road.  Horse Trough Creek Bridge is about 34 kilometres from Gatton along that road.  The deceased’s Datsun was travelling in a generally northern direction as it approached the bridge.^[1]  The road in the vicinity of the bridge is depicted in numerous photographs, and in a digital recording that was made by the Department of Main Roads in September 2008 as part of its annual survey of major roads in Queensland.

8. The Gatton-Clifton Road in the vicinity of the accident is a two-lane, bitumen road with undivided traffic flow.  The speed limit along the road is 100 kilometres per hour.  The road narrows to cross Horse Trough Creek.  The bridge is a single lane bridge that is 18.4 metres long.  The section of the road either side of the bridge is straight.  Sight distance from the bridge to the north exceeds 500 metres.  Sight distance from the bridge to the south exceeds 250 metres. 

9. A driver heading north in the direction of the bridge negotiates a gentle right hand bend in the road before this straight section of road. A driver approaching the bridge from the opposite direction would negotiate a bend at which there is a 60 kilometre per hour advisory sign before reaching a straight stretch of road along which the driver would have vision of more than 500 metres in the direction of the bridge.

10. A car travelling north along the road encounters a sign indicating that a one-lane strip of road is ahead. There is another sign indicating that a Give Way sign is ahead.  The Give Way sign is about 25 metres from the southern end of the bridge.

11. A car approaching the bridge heading south passes a warning sign indicating that the road narrows to one lane. Closer to the bridge there is a “No Overtaking or Passing” sign.

12. Line markings on the immediate approaches to the bridge also serve to indicate that the road narrows to one lane.

13. The speed at which the deceased’s Datsun was travelling prior to the collision is unknown. There is no evidence that it was being driven at a speed that was excessive in the circumstances. The first defendant did not suggest such a thing when he spoke to police shortly after the accident, and he did not give evidence at the trial.

14. The evidence indicates that each driver would have been in a position to observe the approach of the other vehicle as they travelled in opposite directions along the section of straight road in the vicinity of the bridge.

15. The deceased’s Datsun passed through the Give Way sign and onto the bridge.  After he saw this the first defendant took emergency action.  According to Senior Constable Peereboom, who is an experienced crash investigator with qualifications in that field, the time lag between the decision to apply the brakes and the brakes taking effect depends on the alertness of the driver.  Police investigators normally work on either a one or one and a half second perception reaction time, and with country driving this can increase to two seconds.  In this case, Senior Constable Peereboom adopted a figure of 1.5 seconds and the parties both accept this figure.  After the first defendant applied his brakes in the emergency situation the Pajero skidded for about 40 metres to just north of the bridge.  Senior Constable Peereboom measured a distance of 26.34 metres from the commencement of the skid mark to the estimated point of impact.  The skid marks continued for a further distance of about 10 metres.  The photographs of the skid marks indicate that the Pajero was travelling slightly right of the centre of the undivided road before the brakes were applied.  As the brakes were applied it steered to the left side of the road.  As it braked heavily the trailer jack-knifed and entered the path of the Datsun.  The trailer collided with the front driver’s side of the Datsun.  The trailer broke free from the Pajero and remained on the road after the collision.  The Pajero came to a halt just off the eastern side of the road, facing the direction from which it had come.  The Datsun ended off the opposite side of the road.  Based on his investigations, Senior Constable Peereboom estimates that the point of impact between the Datsun and the trailer was 14.58 metres from the northern end of the bridge. 

16. The estimated point of impact was marked on the road and is depicted in photographic exhibits. Heading north it is on the left side of the road. The distance from the estimated point of impact to the shoulder of the road was not measured by Senior Constable Peereboom, and it appears to be a few metres according to the photographs. No submission was made that I should not accept the evidence of Senior Constable Peereboom concerning the estimated point of impact, as marked by investigating officers on the road. I accept his evidence. The point of impact and the damage sustained to the Datsun indicates that the Datsun was on the left side of the road immediately prior to impact and it is possible that its left wheels were on or close to the shoulder of the road when the trailer smashed into it. There were no skid marks indicating that the Datsun braked heavily immediately before the accident.

The first defendant’s account of the collision

17. The first defendant was interviewed by Senior Constable Kennedy-Grills shortly after 2.00 pm on the day of the collision. The collision probably occurred around noon. The contents of her notebook became part of Exhibit 1. The first defendant, who was born in 1975, was travelling with his wife and children. Senior Constable Kennedy-Grills recorded his version of events in her notebook as follows:

“Travelling from Clifton to Oxley for shed.  Realised at no name Creek, about 5kph [sic] past creek. We turned around when I realised had left shed pin number at home at Clifton.  We started back with trailer on.  I think I was travelling about 80kph.  I started to started to [sic] slow to about 60kph, I had my eyes on the road.  I saw the purple sedan travelling in opposite direction.  He looked like he was slowing.  I continued on because I had right of way.  The other car had the give way.  I saw he past [sic] the give way sign.  I saw him move to the middle of the road to take the bridge. I locked up immediately.  My car felt like it was sliding on the road.  I turned the car sharp to the eastern side of road to get right off the road.  The trailer jack knifed and I lost it.  It hit the other car.  We ended up facing back toward Gatton.  I got out and looked, another car turned up.  We all rang for help.”

18. The first defendant and his wife were subpoenaed by the second defendant/insurer to give evidence, but were not called as witnesses. The defendants submit that the first defendant’s version of events, as given to the police shortly after they occurred, should be accepted.

The plaintiff’s allegations of negligence

19. I have earlier summarised the plaintiff’s pleading of negligence. She alleges that the collision was caused as a consequence of the first defendant’s negligence in:

(a)failing to keep any or any proper lookout;

(b)failing to keep the Pajero under control so that the vehicle could be brought to a halt should the deceased’s vehicle proceed onto the bridge;

(c)failing to drive the vehicle at a speed such that, should he need to apply the brakes in an emergency, the vehicle and trailer could safely be brought to a halt, in particular without the trailer swinging out of control; and

(d)travelling at a speed excessive in the circumstances.

20. As submitted, the plaintiff’s case is that the first defendant had a high obligation as he approached the bridge with a trailer attached to his vehicle. Her case is that he should have known, as he approached the bridge, that he was further away from the bridge than the deceased’s vehicle, and should have travelled at a speed such that he could safely bring his vehicle and trailer to a halt should the deceased proceed onto the bridge. The plaintiff submits that the first defendant approached the bridge on the assumption that the deceased was obliged to give way, even when the first defendant’s vehicle was much further away from the bridge than the deceased’s vehicle was.

21. In oral submissions the plaintiff’s counsel emphasised that the first defendant’s obligation—to slow down and keep his vehicle under control such that it could be brought to a halt so as to avoid a collision—arose in circumstances in which he was towing a twin axle trailer. The plaintiff submits that, rather than controlling his vehicle and travelling at a speed so that it and the trailer could be brought to a halt if required, the first defendant “continued on in his belief that he had the right of way, irrespective of whether Mr Schimke was going to stop or not”, and that the first defendant placed himself in a position in which he could no longer control his trailer.

22. The defendants submitted that to the extent the plaintiff’s case involved the submission that there was an error of judgment by the first defendant in not appreciating that the deceased was not giving way to him, it fell outside the particulars of negligence. I accept the plaintiff’s submission that, to the extent the plaintiff relies upon a failure by the first defendant to appreciate that the deceased was proceeding through the Give Way sign, it falls within the particular of failing to keep any or any proper lookout and that, more generally, the plaintiff’s case on negligence, as developed in submissions, is within her pleaded case. Had the need arisen for the plaintiff formally to amend and expressly particularise the points made in counsel’s final submission, then the defendants do not suggest that leave to do so would have been refused. Mr Diehm SC fairly acknowledged that if these contentions had been specifically pleaded then the defendants’ case would not have been conducted any differently. I consider that the plaintiff’s case, as submitted, falls within her pleaded case.

The defendants’ response on the issue of negligence

23. In its pleading, the second defendant denies the allegations of negligence. It pleads that the Datsun appeared to the first defendant to be slowing in a manner consistent with it yielding right of way, that the first defendant kept it in view and that the Pajero was travelling towards the bridge at a speed of about 60 kilometres an hour. Its case is that the first defendant reasonably believed that he was being accorded right of way, and that after the Datsun proceeded past the Give Way sign and onto the middle of the bridge the first defendant immediately braked so as to bring the Pajero and the trailer to an emergency stop.  It pleads that the deceased did not brake or slow the Datsun.  It denies that the Pajero was being driven at an excessive speed and contends that the collision was caused solely by the negligence of the deceased.

24. In their submissions the defendants developed the point that when the first defendant realised that it was no longer safe to cross the bridge he did everything reasonable that was open to him in an attempt to avoid the collision. They submit that there was nothing further he could reasonably have done in that he had reduced his speed from 80 to 60 kilometres per hour as he approached the bridge, kept the deceased’s vehicle under observation and proceeded on the basis that the deceased was going to give way. The defendants submit that negligence is not proved by the fact that the collision would have been avoided if he had slowed sooner. As the High Court observed in Derek v Cheung:^[2]

“Different conduct on the part of those involved… almost always would have produced a different result.  But the possibility of a different result is not the issue and does not represent the proper test for negligence.  That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.”

The regulatory environment and the duty of care

25. Section 70 of the Transport Operations (Road Use Management—Road Rules) Regulation 1999 (“the Regulations”) governed the deceased as he approached the bridge.  Section 70 provides:

“Giving way at a give way sign at a bridge or length of narrow road

A driver approaching a bridge or length of narrow road with a give way sign must give way to any oncoming vehicle that is on the bridge or length of road when the driver reaches the sign.”^[3]

The expression “give way” is defined in Schedule 6 of the Regulations:

“give way, for a driver or pedestrian, means—

(a)if the driver or pedestrian is stopped—remain stationary until it is safe to proceed; or

(b)in any other case—slow down and, if necessary, stop to avoid a collision.”

26. Section 93 of the Regulations governed the first defendant as he approached the bridge and the “No Overtaking or Passing” sign. It provides:

“No overtaking or passing signs

(1)A driver must not—

(a)drive past a no overtaking or passing sign if any oncoming vehicle is on the bridge or length of road to which the sign applies; or

(b)overtake a vehicle on a bridge or length of road to which a no overtaking or passing sign applies.”

27. The plaintiff submits that the deceased’s obligation under s 70 should be construed literally, and that his obligation was to give way to an oncoming vehicle that was “on the bridge”, not one approaching it.^[4]

28. The plaintiff also submits that s 93 applied to the first defendant so that he was required not to drive past the “No Overtaking or Passing” sign when the deceased’s vehicle was on the bridge or the length of road to which the sign applied.

29. The plaintiff relies upon the terms of s 70 to submit that the deceased did not contravene it, since the first defendant’s vehicle was not on the bridge when the deceased reached the Give Way sign.  She submits that, based on the objective evidence obtained by Senior Constable Peereboom, the first defendant’s vehicle was at least 60 metres away from the bridge when the deceased passed through the Give Way sign, and that it can readily be inferred that when the deceased reached the Give Way sign he was not obliged to give way to any oncoming vehicle that was on the bridge.  She submits that the deceased was closer to the bridge than the first defendant’s vehicle and continued on.  The plaintiff submits that on a strict interpretation of the Regulations, there can be no criticism of the deceased’s driving.

30. I do not accept this submission. The content of the deceased’s duty of care towards other road users is not determined solely by reference to applicable traffic regulations.^[5]  What amounts to reasonable care depends on all the circumstances, including applicable traffic regulations.  The content of the duty of care owed by the deceased and the content of the duty of care owed by the first defendant are not determined simply by a literal interpretation of the relevant traffic regulation.  If, on a literal interpretation, the deceased was only obliged by s 70 to give way to a vehicle that was on the bridge, then he also had an obligation to take reasonable care in respect of any oncoming vehicle that was approaching the bridge.

31. Both the deceased and the first defendant were approaching the bridge with obligations to yield right of way in the circumstances described by ss 70 and 93. In addition, each had an obligation to take reasonable care. In Sibley v Kais^[6] the High Court considered the obligation of each driver when two vehicles approach an intersection.  It stated:

“What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”

32. The deceased had a duty to take reasonable care to avoid a collision with an oncoming vehicle that was approaching the bridge. This included giving consideration to the risk that the oncoming driver, in breach of s 93, might drive past the “No Overtaking or Passing” sign, assuming that the deceased’s vehicle was going to give way.

33. The first defendant’s duty to take reasonable care required him to approach the single-lane bridge at a speed that would enable him to bring his vehicle and its trailer to a halt or otherwise avoid a collision should another vehicle proceed across the single lane bridge. If the driver coming in the opposite direction proceeded across the bridge, notwithstanding the Give Way sign, then s 93 required the first defendant not to drive past the “No Overtaking or Passing” sign if the vehicle was on the bridge.  Irrespective of s 93, the first defendant was under a duty to take reasonable care to avoid a collision with a car coming in the opposite direction. 

34. Like the deceased, the first defendant was under a duty to take reasonable care to allow the cars to pass each other safely. The first defendant was not entitled simply to assume that the deceased’s car would give way and remain on the other side of the bridge. The first defendant’s obligation to take reasonable care required him to have his vehicle and trailer positioned on the road and travelling at a speed such that he could bring them to a halt and avoid a collision if the vehicle coming in the opposite direction reached the bridge and proceeded across it. The first defendant’s duty to take reasonable care as he approached the bridge included driving at a speed that would reduce the risk of the trailer jack-knifing in the event that he needed to apply his brakes in an emergency. The twin-axle trailer added to the weight that had to be stopped by the Pajero’s brakes, and the trailer did not have its own brakes.

Findings of fact

35. The defendants submit that I should find the version given by the first defendant to the police to be accurate. The fact that it was given to police shortly after the accident does not necessarily make it reliable. A driver in the position of the first defendant might tend to minimise his responsibility or make an understandable mistake in estimating speeds and distances, even if honestly attempting to recall these matters.

36. I shall proceed on the assumption that the first defendant was travelling at 60 kilometres per hour or 16.66 metres per second. Allowing a 1.5 second reaction time, the first defendant would have travelled 25 metres before the brakes took effect. On this basis he was around 66 metres from the northern end of the bridge when he decided to brake.

37. The first defendant gives no estimate of the speed of the Datsun from the time he first saw it. The first defendant did not take evasive action until after he saw the Datsun pass the Give Way sign and move to the middle of the road to take the bridge.  He does not say how close to the southern end of the bridge the Datsun was when it moved to the middle of the road; however, the Datsun must have travelled some distance from the point of the Give Way sign before the first defendant decided to brake.  The Give Way sign is 25 metres south of the bridge.  If the Datsun was still about 10 or 12 metres from the southern end of the bridge by the time the first defendant decided to take evasive action then the Datsun had about 30 metres to travel before it reached the northern side of the bridge.  On the assumptions earlier made, the Pajero was about 66 metres away from this point at the same time.  The plaintiff relies upon the fact that, on this basis, the deceased was closer to the northern end of the bridge than the first defendant at the time the first defendant decided to brake.  Calculation of these distances depends on how long it took the first defendant to detect that the Datsun had gone past the Give Way sign and was proceeding onto the bridge, and the speed at which the Datsun was travelling.  It also depends upon the assumption that the first defendant’s Pajero was travelling at 60 kilometres an hour.

38. The plaintiff placed particular reliance upon the following part of the first defendant’s statement to police:

“I continued on because I had right of way.  The other car had the give way.”

The plaintiff relies upon this passage as indicating that the plaintiff proceeded as he did, and left it too late to slow, because he assumed that the other car had to give way and that he had right of way.  The plaintiff contends that the first defendant should not have travelled at the speed he did assuming that the Datsun had to give way, and would do so. 

39. The defendants rely upon the first defendant’s statement that the driver of the Datsun “looked like he was slowing”. There is no sufficient reason to reject the first defendant’s account of this perception. However, the fact that the Datsun looked like it was slowing did not mean that it was going to give right of way. Any perceived slowing may have been slowing in order to negotiate the single lane bridge at a safe speed.

40. The first defendant may have assumed that the other car was going to give way because at some point it was slowing. His statement to police does not actually say this. The plaintiff says that I should not infer that this was the first defendant’s thinking when he did not say as much to the police, and has not given evidence. The defendants invite me to infer that the first defendant believed the Datsun was going to observe the Give Way sign because it appeared to slow down, even though the first defendant does not say this.  That invitation involves “reading between the lines” of the first defendant’s account as recorded in the police notebook.  I am prepared to do so.  Still, the point remains that the fact that the Datsun appeared to slow does not mean that it was going to give way.  At the point of time at which the first defendant realised that the Datsun was not going to give way the Datsun was much closer to the bridge than the Pajero.  If, as the first defendant says, the Pajero was travelling at 60 kilometres per hour, it was about 66 metres from the northern end of the bridge. 

41. The defendants submit that it was reasonable for the first defendant, when he observed the Datsun to slow, to consider it was then safe for him to cross the bridge. I do not accept this submission. Depending upon the extent to which the Datsun slowed, its speed, and its location when it appeared to slow (matters not specifically addressed in the first defendant’s statement), such slowing may have been consistent with the driver of the Datsun intending to give way. However, it was also consistent with the Datsun proceeding past the Give Way sign.  In the circumstances disclosed in the first defendant’s statement it was not reasonable for him to assume that the other car was going to give way and that he “had right of way”.  His obligation to take reasonable care required him to have his vehicle and trailer in hand and travelling at a speed such that they could be brought to a halt or otherwise avoid a collision if the Datsun proceeded across the bridge.

42. As was stated in Sibley v Kais:^[7]

“The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law.  Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.”

The circumstances of this case involved a Give Way sign, not a stop sign.  Whether or not the driver of the Datsun yielded right of way depended upon an exercise of judgment by that driver.  The fact that the oncoming Datsun appeared to be slowing did not entitle the first defendant to assume in the circumstances that the Datsun would stop at the Give Way sign.  All the first defendant says about slowing is that “[h]e looked like he was slowing”.  The first defendant does not say anything about the location of the Datsun when he gained this impression, the speed of the Datsun before it appeared to slow or the speed to which it slowed.  If the Datsun in fact slowed then this may have been the actions of the deceased in slowing to negotiate a one-lane bridge, rather than slowing to stop at the Give Way sign.

43. The defendants submit that when he realised that the Datsun was not going to give way the first defendant did everything that he could reasonably have done to avoid the collision. However, this does not address the plaintiff’s essential case on negligence. This is that by the time the first defendant applied his brakes it was too late and the Pajero and its trailer were travelling at a speed that was excessive in the circumstances. In particular, they were travelling at a speed that meant that, under heavy braking, the trailer might jack-knife into the path of the oncoming vehicle.

44. I consider that the plaintiff has established that the first defendant was negligent on this basis. The first defendant assumed too readily, and unreasonably, that he “had right of way” because the other car had a Give Way sign and that the other car therefore would give way.  The evidence does not persuade me that it was reasonable for the first defendant to assume that the other car was going to give right of way.  The fact that it appeared to be slowing was not sufficient to make this a reasonable assumption.  The Pajero was travelling at a speed that was excessive in the circumstances.  Those circumstances include the fact that it was towing a trailer, and emergency braking to avoid a collision with the oncoming vehicle might cause the trailer to jack-knife into the path of the oncoming vehicle. 

45. The first defendant’s negligence was a cause of the collision. The collision occurred because the trailer jack-knifed. In a submission relating to the issue of negligence, rather than that of causation, the defendants submit that the reason the first defendant’s attempts to avoid the collision were not effective was because the deceased, being in a position to appreciate the unfolding emergency, continued on without stopping, slowing or steering his vehicle to avoid a collision. This submission, if accepted, does not mean that the first defendant’s negligence was not a cause of the accident. Instead, it identifies one of the bases upon which the defendants contend that the deceased also caused the collision. The issue has a bearing upon contributory negligence.

46. I accept that the deceased proceeded across the bridge without stopping. There is no evidence that he slowed down. The first defendant’s statement to the police is silent about the speed at which the Datsun appeared to be travelling as it crossed the bridge and drove along the road at its northern end. The first defendant may have been preoccupied with watching the road ahead of him, and not been in a position to assess the speed of the deceased’s vehicle. On the state of the evidence before me I am not in a position to conclude that the deceased failed to slow down immediately before the accident in order to avoid it. He may have slowed. In any case, during the few seconds before the collision both drivers found themselves in a perilous situation. If the deceased had stopped or slowed down whilst on the one-lane bridge or in the space of several metres on its northern side then he may have placed himself in a situation where a head on collision might eventuate. The better course may have been to exit the one-lane bridge as fast as he reasonably could and move his vehicle as quickly as he safely could to the left hand side of the two lane road. There is no evidence that he did not do so. In fact, the point of collision tends to indicate that he did move his vehicle into this position after leaving the bridge. I do not find that it was negligent of the deceased to continue over the bridge once it became obvious that there was a risk of collision, and that a collision was imminent. Emergency braking on the bridge or on the northern approach to it may have avoided this collision, but it also may have caused a different collision.

47. The fact that, as matters transpired, the Pajero ended up on the northern side of the bridge does not mean that it would have stopped before the bridge on the northern side under heavy braking had the Datsun not collided with the trailer. One cannot speculate about the extent to which the collision between the Datsun and the trailer as it jack-knifed may have slowed and otherwise affected the movement of the Pajero towards the bridge.

48. The deceased was negligent in failing to yield right of way in circumstances in which he was in a position to observe an oncoming vehicle and was facing a Give Way sign.  However, having driven onto the bridge, he faced a difficult decision whether to proceed across it before the Pajero arrived at it or to bring his car to a halt and possibly collide with the Pajero on the bridge.  I decline to find that he was negligent in doing the former.

49. To adopt what was said in Derek v Cheung in respect of the deceased’s alleged failure to brake while on the bridge, different conduct would have produced a different result, but the possibility of a different result does not represent the proper test for negligence.  Having concluded that the deceased acted negligently in proceeding on to the bridge in the circumstances, I am not persuaded that he was negligent in failing to stop or slow down once he was upon it.  Once a collision was imminent, it was reasonable for him to attempt to reach the two-lane stretch of road.  He did so in circumstances in which the Pajero was taking evasive action, and the deceased would have survived had the trailer not jack-knifed.

50. The plaintiff concedes that the deceased was contributorily negligent. The defendants submit that if negligence is found against the first defendant, then the plaintiff’s claim should be defeated upon the basis of a 100 per cent reduction.^[8]  Alternatively, the defendants submit that contributory negligence should be assessed overwhelmingly in the defendants’ favour.

51. The plaintiff submits that if the deceased was entitled to enter onto the bridge when he did in accordance with the Regulations, then apportionment between the parties would be 85 per cent against the first defendant and 15 per cent against the deceased. In the alternative, the plaintiff submits that if I find that the deceased was not entitled to enter the bridge then the apportionment should be equal, given what she contends is the equal responsibility of the two drivers.

52. I decline to find that the deceased was entitled to enter on to the bridge. As I have found, a literal interpretation of the Regulations does not exhaustively state the content of the deceased’s duty of care. There is no reason to suppose that the deceased did not see the oncoming Pajero. He would have done so if he had kept a proper lookout. Reasonable care in the circumstances of a one-lane bridge required him to yield way to the Pajero. A reasonably prudent driver would have done so unless it was clear that sufficient time was available to cross the bridge and reach the double-lane road, enabling the vehicles to pass safely, and without requiring the Pajero to brake. The deceased was not entitled to assume that the Pajero would yield right of way to him. Reasonable care required him to assess the risk that the oncoming vehicle would assume that it had right of way and that the deceased would stop near the Give Way sign.  A wrong assessment by the deceased of the speed of the oncoming Pajero, the distance it had to travel, his own speed or a combination of these things was apt to put the occupants of both vehicles at risk.  In these circumstances, the deceased should have yielded way to the Pajero and it was negligent for him to have failed to do so.

Summary of findings on negligence and contributory negligence

53. If the first defendant knew before the accident that a Give Way sign faced drivers coming in the opposite direction, then this does not mean that he was entitled to assume that the Datsun would stop at the Give Way sign.  The driver of an oncoming vehicle might judge that he was substantially closer to the bridge than the Pajero, could safely cross the bridge before the Pajero arrived at it, and was not required to yield.

54. If, as I have found, reasonable care by the deceased required him to yield way to the Pajero, then the first defendant was not entitled simply to assume that the driver of the oncoming car would do so.

55. The first defendant did not act reasonably in assuming that the Datsun would stop at the Give Way sign.  He unreasonably concluded that because there was a Give Way sign, the Datsun would stop at it and that he had right of way.  His duty to take reasonable care as he approached the single lane bridge was to drive at a speed that would enable him to bring his vehicle and its twin axle trailer to a halt or otherwise avoid a collision should the Datsun proceed across the single lane bridge.  This obligation was reinforced by the presence of the No Overtaking or Passing sign.  However, well before that sign was reached the first defendant was obliged to take reasonable care in approaching what was signposted as a one-lane bridge.  The first defendant failed to take reasonable care to approach the single lane bridge at a speed that would enable him to bring his vehicle and its trailer to a halt or otherwise avoid a collision.  He was travelling at a speed that was excessive in the circumstances.  He was travelling at a speed that meant that the Pajero and the trailer could not be slowed rapidly without endangering the occupants of the oncoming vehicle, particularly if the trailer jack-knifed as a result of heavy braking.

56. The first defendant drove at a speed that was excessive in the circumstances when it was not reasonable for him to assume that the approaching car was going to give right of way. The speed was excessive in the circumstances because emergency braking to avoid a collision with the oncoming vehicle might cause the trailer to jack-knife into the path of the oncoming vehicle.

57. The deceased also failed to take reasonable care to avoid a collision with an oncoming vehicle that was approaching a bridge. Reasonable care in the circumstances of a one-lane bridge required him to yield to the Pajero unless it was clear that sufficient time was available to cross the bridge and reach the double-lane road. The deceased was not entitled to assume that the Pajero would yield right of way to him.

58. There is no evidence that the deceased approached the bridge at a speed that was excessive in the circumstances. A wrong assessment by him of the speed of the oncoming Pajero, the distance it had to travel, his own speed or a combination of these things caused the deceased to miscalculate the time he had to cross the bridge. His error of judgment about the time that he had to cross the bridge safely led him to fail to yield way to the Pajero when a reasonably prudent driver would have done so. His error of judgment in failing to yield right of way was a serious one. Having negligently failed to yield and driven onto the bridge, the deceased faced a rapidly developing danger. Heavily applying the brakes and stopping on the bridge or to its immediate north risked a head on collision. I am not persuaded that the deceased was negligent in failing to stop or slow down once he was upon the bridge. It was reasonable for him to attempt to reach the two-lane stretch of road. He in fact did so, in part because the Pajero braked heavily. The deceased would have survived had the trailer not jack-knifed. I decline to find that the deceased was also negligent in failing to brake heavily once he was on the bridge, when the risk of collision would have been obvious to him. He may have braked without skidding. But he may not have applied his brakes at all in order to reach the two-lane stretch of road and move to the left side of the road.

59. The collision was caused by both the negligence of the first defendant and the negligence of the deceased.

Apportionment of liability

60. In assessing the extent to which damages are to be reduced on account of the deceased’s failure to take reasonable care, I am required to consider what is just and equitable having regard to his share in the responsibility for the damage. This involves a comparison of the degree of departure from the standard of care required by each driver.^[9]

61. The determination of a just and equitable apportionment of liability does not turn on inflexible rules concerning the party whose negligence set the scene for what followed, or which party had the last opportunity to take reasonable care to avoid the collision. All of the circumstances must be considered.

62. As noted, the plaintiff submits that if I find that the deceased was not entitled to enter the bridge, then the apportionment should be equal, given what she contends is the equal responsibility of the drivers. In oral submissions, Mr Mullins of Counsel argued that both drivers caused the collision through errors of judgment. The deceased’s error of judgment was said to be no worse than the first defendant’s. The deceased probably misjudged the Pajero’s speed, the distance it had to travel before it reached the bridge, or his own speed. The first defendant misjudged what the deceased was doing, assumed that he was going to give way, and proceeded on the basis of a belief that he had right of way, thereby giving up any capacity to stop his vehicle and trailer before the bridge so as to allow a vehicle to come through.

63. In summary, Mr Mullins submitted that the first defendant’s breach of duty, like the deceased’s, was founded on a failure to appreciate what the other vehicle was doing. The deceased’s error of judgment was that he believed he could enter the bridge because it was clear to do so. Mr Mullins argued:

“Is that any worse an error of judgment than Mr Clements’?  Both parties believed it was safe to proceed, based on the conduct of the other vehicle.”

64. I accept that the negligence of each driver arose, in part, because of errors of judgment about the conduct of the other vehicle and, unreasonably in the circumstances, each driver assumed that he was not required to yield way to the other. However, the task of apportioning liability is not resolved simply by characterising each driver as having committed a similar, serious error of judgment. I do not accept the plaintiff’s submission that this is a case that calls for equal apportionment once I find that the deceased was not entitled to proceed across the bridge in the circumstances. I consider that the deceased’s departure from the standard of care required of him was greater than the departure from the standard of care required of the first defendant.

65. Even if the deceased’s failure to yield right of way was not a contravention of s 70 of the Regulations, as literally construed, it was a serious departure from the standard to be expected of a driver in his position.

66. Apportionment is not determined by the obvious fact that if the deceased had yielded right of way the collision would have been avoided, any more than the fact that the collision would have been avoided had the first defendant reduced his speed sooner and kept his vehicle and trailer under control so that he could bring both units to a halt and avoid a collision. Still, the deceased’s negligence was causatively potent because it committed him to the course of attempting to reach the other side of the bridge. Although it was not negligent of him to fail to stop on the bridge, his decision to cross the bridge led him to a further decision to attempt to complete the crossing. His negligent failure to yield right of way literally led him into a danger zone in which he had limited options to avoid a head on collision.

67. As serious as the deceased’s negligence was in failing to yield way, I do not consider that the apportionment of responsibility should be overwhelmingly attributed to the deceased. He made a serious error of judgment. However, in proceeding past the Give Way sign he was still closer to the northern side of the bridge than the oncoming Pajero.  There is no evidence that he was so far south of the Give Way sign that the first defendant assumed on that basis that because the Pajero was closer to the bridge it had right of way.  The Datsun did not come to a halt so as to lead the first defendant into the belief that the Datsun was yielding right of way. 

68. The first defendant’s departure from the standard required of him was also serious. He proceeded towards a one-lane bridge, passing a “No Overtaking or Passing” sign when it was not reasonable to assume that the Datsun would stop at the Give Way sign.  Once he realised that he was on course for a collision with the Datsun, the first defendant took immediate action to stop.  His negligence does not lie in the manner in which he reacted in the last few seconds before the collision.  It lies in his earlier failure to have his vehicle and large trailer travelling at a speed at which he could bring them to a halt and avoid a collision if a vehicle coming in the opposite direction reached the bridge and proceeded over it.  It was not sufficient in the circumstances to drive at a speed that might avoid an accident if no trailer was being towed.  Heavy braking to avoid a collision with an oncoming vehicle on the single-lane stretch of road carried the risk that the trailer would jack-knife into the path of the oncoming vehicle.  If the first defendant had reduced his speed much earlier, then the trailer would not have jack-knifed when it did and killed the deceased.

69. I consider that a just and equitable apportionment involves the attribution of 35 per cent to the first defendant and 65 per cent to the deceased.

70. The plaintiff’s damages for personal injury are not reduced on account of the contributory negligence of the deceased. However, the balance of her claim for dependency and funeral expenses will be reduced by 65 per cent by reason of the deceased’s contributory negligence.

Quantum

71. The plaintiff was born in December 1943. She is currently 67 years of age. The deceased was born in September 1944 and was 63 at the date of his death. Had he survived he would now be 66.

72. The plaintiff grew up in the Marburg area.  After leaving school, she worked as a waitress and shop assistant.  She married the deceased in May 1972, and they worked on a farm at Lake Clarendon.  In 1977 they purchased their farming property at Caffey near Gatton.  They worked hard as farmers in the decades that followed.  They ran livestock and grew crops.  They grew lucerne, potatoes and onions.  The plaintiff and her husband would pick the potatoes and onions without outside labour.  They grew sorghum as a summer crop and oats as a winter crop.  A lucerne crop would be mowed after about six weeks of growth.  It would then be raked, dried and baled. 

73. The farm had irrigation sourced from a nearby creek, save for drought years. Irrigation lines would need to be moved. Although the plaintiff can shift these pipes, when he was alive the deceased did all of that work. The deceased was a remarkable worker. He was known for his work ethic and the standard of his work. Another farmer, who observed the deceased over the years, described him as a really hard worker, and probably a workaholic. That witness, Mr Hutton, said of Mr Schimke: “That’s all he knew, was hard work”.  For example, in undertaking irrigation, the deceased used to run with the pipes, whereas everyone else would walk.  Mr Hutton explained that the deceased “was a man that never wasted a minute of his life.  Every minute had to be a full minute.”  The deceased would do all the baling.  Since his death the plaintiff has had to get a contractor to bale hay.

74. The plaintiff and her husband would grow the potato crop together. This involved the use of machinery in planting, and using a potato digger behind a tractor at the time of harvesting. However, once the digger had gone through the field, the plaintiff and her husband would pick the potatoes by hand and put them in bags. The Schimkes did not engage outside labour for their farm work, save for occasional work with ploughing the potatoes, sewing up the bags and helping with the loading.

75. The deceased was responsible for spraying cattle for ticks. The farm has 4,090 metres of fencing. The deceased would take care of the fencing and its maintenance. The farm also carried pigs and poultry. Some cattle were milked. Occasionally a cow or pig was slaughtered to provide meat for the plaintiff and her husband. Naturally, they supplied their own vegetables. In this way they were largely self-sufficient in terms of food. Cattle and vegetables would be sold. Some of the crops would be used to feed their own cattle. The rest would be sold.

76. Mr Hutton described the deceased as a perfectionist. His crops would be to a high standard and he carefully maintained his fences.

77. The plaintiff and her husband had recreational interests, such as country and western music. However, in large measure their work was their life. The deceased would work well over eight hours a day, seven days a week. Tending to the farm and its animals came first. The plaintiff and her husband did not holiday together. One would remain on the farm. The plaintiff and her husband did not have children. In every sense of the word, the plaintiff and her husband were partners. Their farm was their home and their life. They had no plans to retire. Had her husband survived, the plaintiff expected that over time, and as they got older, they would cut back on the amount of potato growing, which is physically hard work, and devote more time to the cattle. However, it does not appear that the plaintiff or her husband were ready to wind back such hard physical work. The plaintiff accepted that they might have cut back on the extent of potato farming if at some future date they “wanted to slow down”, or “when Reg was ready to slow down”. She continued: “But while you’re healthy or while, you know you’re strong enough to do it, well, you’ll stick to farming, won’t you, crops.”

78. In the years immediately preceding Mr Schimke’s death, the Gatton area had been affected by drought. This meant that a reliable irrigation source could not be guaranteed, and a potato crop was not planted. With his farming skills and work ethic, the deceased was able to obtain employment away from the farm to supplement the farm’s income. The plaintiff submitted following table of the net income in the years preceding the accident:

These were drought years.  The drought broke in the last few years but, without her husband, the plaintiff has been unable to produce the crops that they would have produced if Mr Schimke had survived.

79. The plaintiff continues to toil on the farm. A DVD recording shows the hard work that is involved. However, despite all of that hard work, the plaintiff has been unable to maintain the farm, even with outside assistance. She cannot produce the crops that could have been produced by the partnership. Despite her efforts, the condition of the cattle has deteriorated. Although cattle can now graze where crops were once cultivated, and the number of cattle has grown from between 16 and 20 to about 30, their condition is poor. Mr Hutton says that they have “gone down hill rapidly” and are in a bad state, despite recent conditions being “the best season we’ve ever had”. The general state of the farm has deteriorated. Mr Hutton assists with fencing, when requested, from time to time. However, as he explained, fencing needs to be maintained all of the time and, without the deceased, cattle are able to escape. Another witness, Mr Goltz, assists with contract work, including mowing and baling. His evidence is that the state of the machinery has deteriorated through lack of maintenance. His evidence was that the farm has gone back in the last three years and it is only growing “sort of grass and some weeds on it now.” Roads on the farm are not maintained as they would have been if the deceased was still alive.

80. When the deceased did not arrive home as expected, around noon on 2 February 2008, the plaintiff suspected that something had gone wrong.  She made telephone inquiries.  The police came out to the farm and told her that her husband had been killed.  She told Dr Byth, a psychiatrist, that she “went onto automatic pilot”.  Her sister and other members of the family came to support her.  She had the traumatic experience of having to identify her husband’s body at the hospital, and then again a week later at the morgue.  She attended the funeral and was “unable to cry, like something was blocked in my brain”.  She threw herself into work but struggled to do the work that she used to do, let alone the work that her husband used to do.  She lost weight and became run down.  In August 2008 she consulted her general practitioner who prescribed an anti-depressant.  She was also referred to a psychologist for counselling.  Her symptoms improved, but she relapsed in early 2009.  Despite anti-depressants and the counselling that she had received, she continued to have depressed moods, to sleep poorly and to be excessively tired during the day.  Her continuing depression was due to her loneliness and the great difficulty of trying to undertake jobs that her husband once would do.  The first anniversary of her husband’s death was a particularly bad time.  Her depression continues.  In her evidence the plaintiff struck me as a stoic woman.^[10]  She was not given to exaggerating her depression.  In response to the suggestion that she has felt a bit better, and a bit more able to cope since the first anniversary of her husband’s death, she responded:

“No, I can’t cope very much.  I look strong to people, but they don’t know what goes on behind closed doors.  It gets you down, the work.  You get tired.  You can’t cope as well.  But, anyway, that’s life.”

81. She did not accept that it was the hard work that made her struggle. She responded:

“[N]ot really.  It’s just everything builds up into one…. Reg isn’t there.  I’ve got four walls.”

82. The plaintiff’s depression, and the time that she has to devote to work around the farm, has led to a deterioration in her home. Before her husband’s death, the plaintiff’s home was neat and tidy and maintained to a very high standard. Now, according to Mr Hutton, “there’s stuff everywhere”. The plaintiff has lost interest in looking after her home and has not got the time to do so. She only comes back to her home after dark every night.

Personal injury

83. There is no dispute that the plaintiff developed a psychiatric injury as a result of her husband’s death. She consulted Dr Byth on 5 February 2009. In his report dated 4 March 2009 Dr Byth comprehensively discussed the plaintiff’s psychological symptoms and the treatment she had received, which included six sessions of counselling and an anti-depressant drug prescribed by her general practitioner.  Dr Byth diagnosed Adjustment Disorder with depressed mood (Reactive Depression).  This arose from the circumstances of the accident and the plaintiff’s difficulty in coping with the death of her husband.  Her depressive symptoms were assessed to be in the mild to moderate range of severity.  In his oral evidence, Dr Byth thought there was only a mild prospect of improvement.  This was because of Mrs Schimke’s relapse despite treatment.  In his report, Dr Byth assessed the plaintiff’s permanent impairment using a PIRS assessment.  He concluded that there was a six per cent Whole Person Impairment.

84. At the defendant’s request, the plaintiff was assessed by Dr Leong, a consultant psychiatrist. His report noted similar symptoms to those reported by Dr Byth. In his report dated 14 April 2009 Dr Leong diagnosed a past history of Adjustment Disorder with depressed mood. It was said to be “in remission on treatment”. His PIRS score of 8 (equating to Whole Person Impairment of one per cent) was based upon there being no impairment of self-care and no impairment of concentration, persistence and pace. In his oral evidence, Dr Leong accepted that an alternative assessment to Adjustment Disorder with depressed mood in remission on treatment would be one of partial remission. The evidence given by the plaintiff at trial, by her sister and by Mr Hutton indicates that the plaintiff is impaired in terms of self-care, in her ability to concentrate on tasks and in her ability to complete tasks.

85. The plaintiff still attends social outings, although not as often as before. She is able to travel to visit her mother. There is not a great difference between the assessments undertaken by Dr Byth and Dr Leong. However, to the extent that they differ, I consider that Dr Byth’s report and his assessment of impairment more closely reflect the evidence at trial concerning the plaintiff’s current impairment and the impairment that she has experienced over the last few years.

86. The plaintiff acknowledges that the claim for personal injuries is a modest one. The parties accept that her claim for personal injury falls to be assessed under Item 12 of Schedule 4 to the Civil Liability Regulation 2003.  The plaintiff submits that the assessment should be toward the middle of the range and that an appropriate assessment is an ISV of 8 or general damages in the sum of $8600.  The defendants submit that the assessment should be an ISV of 7 in the sum of $7,400.  I assess the plaintiff’s general damages in respect of her diagnosed Adjustment Disorder with Depressed Mood as having an ISV of 8, and assess her general damages at $8,600.

87. The plaintiff claims special damages in relation to out-of-pocket expenses in relation to prescription drugs and travel to obtain them. She also claims special damages in respect of future treatment and pharmaceuticals. The parties are agreed that past out-of-pocket expenses should be assessed at $2,000, future special damages assessed at $2,000 and interest on past economic loss assessed at 2.5 per cent per annum, which approximates $170.

88. The plaintiff’s damages for personal injuries accordingly total $12,770.

Loss of financial support and services

89. This aspect of the plaintiff’s claim is conveniently described in submissions as her “dependency” claim. However, this is not an entirely accurate description, even though the plaintiff was in fact dependent upon her husband for the income that his work produced and the services he provided on the farm. The principles governing a claim for the loss of the material benefits that the plaintiff would have derived from her husband if he had lived are well-established. The contest arises in relation to the application of those principles to the facts.

90. Damages are awarded for the loss of the prospect of future benefit. The expectation of future benefit was destroyed by the death of the plaintiff’s husband. Damages are assessed by reference to the pecuniary benefit that could have been expected from the continuance of Mr Schimke’s life. Damages do not compensate for non-pecuniary injury such as grief.  Damages are awarded for losses sustained and not for needs created.  One aspect of the loss is the expected benefit from the deceased’s financial support.  Another aspect is the loss of services the deceased would have provided in and around the home.  The fact that no expenditure may be incurred to replace the benefit of those services does not mean that no loss has been sustained.  The Court is required to value the loss and may have regard to the commercial cost of purchasing such services.^[11]

91. Damages for loss of “dependency” are calculated on a balance of pecuniary gains and losses consequent upon the death.

92. There are different methods for the calculation of dependency in two-income families. These are discussed in Luntz’s Assessment of Damages for Personal Injury and Death.^[12]  One method adopted in the cases is described as follows:

“The two incomes are added together, the conventional dependency figure is then applied (66% if there are no children, 75% if there are) and then the survivor’s income is deducted.  A similar approach has been adopted in Australia, but is not always followed.  The expanded table 9.1 now provided may give better guidance in cases on two income families.”^[13]

The table to which the learned author refers is one based upon actuarial analysis of household expenditure surveys.  I was referred in submissions to cases involving farms that were operated as a family business.^[14]  They do not establish any special principles or automatic rule in the case of the loss of a person’s services to the partnership business.  Instead, they serve to illustrate the application of the general principle that a loss will be suffered whether or not the claimant engages another person to provide the same services for the business.

93. In this case the plaintiff has paid others to provide some of the services that the deceased would have provided. Mr Hutton has provided fencing services and Mr Goltz has provided services with machinery, mowing and baling.  Mr Hutton has charged the plaintiff far less than he would charge others for his fencing work.  However, despite the work that these gentlemen have provided, the farm, its fencing and its machinery are not in the state that they would have been had the plaintiff’s husband survived.  It has deteriorated and it is less productive.  It is likely that the plaintiff and her husband would be producing a potato crop by now. 

94. A difficulty in applying the established principles in assessment of damages in a “dependency” claim arises because the farm was both a business and a home for the plaintiff and her husband. The plaintiff has lost the benefit of Mr Schimke’s labour around the farm. This is a significant loss because of the intensity and quality of his work. Had he survived, the farm’s income would have been much higher. The deceased’s work also served literally to put food on their table. The deceased’s work also maintained their home and its surroundings. It is necessary to recognise that the deceased’s death has caused both a direct financial loss and the loss of services in respect of the maintenance of the plaintiff’s home and the food that the farm is able to produce for the plaintiff’s subsistence. That said, one must avoid double counting. For example, an hour spent by the deceased in fencing was of benefit both to the farm as an income-producing business and also to the farm as a place in which the plaintiff and her husband lived, kept stock and produced crops for their own needs. The loss of the benefit that was derived from the deceased undertaking fencing work should be taken into account, but not double-counted.

95. The deceased performed some purely domestic work such as washing up. The hours spent and the loss of services is relatively small compared to the loss of his services in connection with the business and the farm in general.

96. The plaintiff now attempts to do some of the work that her husband would have done and, in doing so, is forced to neglect domestic chores.

97. A further complication in the assessment of damages arises from the fact that the years immediately preceding Mr Schimke’s death were unusual years so far as the income of the plaintiff, the income of the deceased and farm income are concerned. These were drought years and the farm did not produce much income. Instead, the deceased worked for wages off the farm. Had he survived this would have continued for some time, probably until the drought broke when the farming business would have returned to its normal pattern, including the planting of a potato crop. The material before me does not permit a precise assessment of how the farm’s expected total income in recent years compares with the combined income of the deceased and the plaintiff in the years immediately preceding the accident. However, the plaintiff’s evidence is that growing a potato crop was more remunerative than doing outside work. I have no reason to doubt her evidence. However, the state of the evidence only permits a broad-brush approach to the assessment of pecuniary loss in deciding what the farm’s income would have been in the few recent seasons since the drought broke and in the coming years, assuming the deceased had survived.

98. Account must be taken of contingencies.^[15]  Contingencies include the risk of illness, injury, unemployment and other misfortunes, as well as the contingency of good fortune. 

99. The deceased was diagnosed with prostate cancer and underwent surgery in May 2007.  He recovered from that surgery, and by late 2007 and early 2008 was able to carry on working on the farm and to take on work cutting grapes.  I conclude that, had he not been killed, he would have continued to undertake work for other farmers to supplement the Schimkes’ farm income, and that he would generally have been fit enough to carry on the arduous work around the farm.  The deceased had experienced back problems on occasions, and had consulted a chiropractor.  It is possible that his back condition could have rapidly deteriorated.  However, I cannot evaluate the extent of this possibility with any precision.  I think it likely that, had the deceased not died, he and his wife would have planted crops, including potatoes, after the drought broke in the last year or two, and would have continued to produce potato crops for several years.  Despite their remarkable work ethic, it is likely that at some point in the future the deceased would have slowed down, reduced the extent of his potato crop and relied more on pastures and cattle for the farm’s income.

100. The evidence does not indicate that the plaintiff and her husband contemplated any kind of retirement. Subject to their health, I think it likely that they would have continued with farm production until they were aged at least 75, although the scale of their crop production may have diminished over the next decade. The defendants accept that the deceased had a strong work ethic and motivation to continue working.

101. The parties have produced tables of income, including the plaintiff’s income, the deceased’s income and partnership income. I have earlier set out the plaintiff’s table of net income in the years preceding the accident. The defendants’ schedules broadly reflect these figures.

102. The plaintiff submits that in the years preceding her husband’s death, the plaintiff’s income was at best $80 net per week and the deceased’s income was approximately $480 net per week. Therefore her income was 16% of the deceased. Adopting the methodology referred to in Luntz, $80 (plaintiff) + $480 (deceased) = $560 x 0.66 ($369.33), less plaintiff’s income ($80) yields a dependency of $289.60 per week. Allowing that sum between the date of the accident and the current time (176 weeks) yields $50,970 as past loss of dependency.  Some allowance for contingencies is required including the contingency that the plaintiff and her husband would have been able to plant a potato crop in recent years.

103. As to the future, the plaintiff submits that had the deceased lived he would have continued to produce a financial benefit to the same extent through to the age of at least 75. Assuming some increase in income on account of inflation, one starts with a weekly loss of $300. Allowing $300 per week for a period of nine years yields the sum of $114,000 on the five per cent table in order to arrive at a present value. Reducing that sum by 15 per cent for contingencies yields $96,900.

104. The plaintiff makes a separate and substantial claim for “loss of services”, noting that some of those services would have been contributed to the business, whereas a significant proportion of them would have been to the maintenance of the farm and, to some extent, the subsistence life that the plaintiff and her husband lived.

105. The plaintiff submits that the cost of replacing those services varies depending upon whether it is simple farm work or fencing or other contract work where the commercial cost of purchasing such services is around $60 per hour.

106. The plaintiff submits that a reasonable allowance for the value of the services provided by the deceased is three hours per day. This amounts to 21 hours per week. The plaintiff submits that ten hours per week should be allowed at $60 per hour and the additional 11 hours per week at $20 per hour. The total value is $820 per week.

107. Allowing that sum in the past for a period of 176 weeks yields the sum of $144,320. It is noted that the plaintiff has expended the sum of $9,315.60 in contract labour and those costs would be subsumed in that allowance.

108. As to the future, the deceased would have had a life expectancy of a further 19.77 years. Assuming that he could have continued to provide those services for a further 15 years (555 multiplier) would yield a sum of $455,100 for future services. The plaintiff submits that sum should be reduced by 15 per cent for contingencies to yield a sum of $386,835 as future services.

109. In supplementary submissions the plaintiff submitted alternative amounts based upon the assumption that once the drought broke in late 2009, it is likely that the plaintiff and deceased would have planted a potato crop in 2010 and the deceased’s “outside work” may have been reduced. On this approach, the plaintiff submits that a joint income of the deceased and the plaintiff would have increased through increased production on the farm, and the hours the plaintiff contributed to the farm would also have increased. She submits alternative calculations both as to the past and future. The final result of these calculations is not significantly different from the plaintiff’s original submissions and, as the plaintiff submits, this is not surprising, given the circumstances. In her supplementary submissions, the plaintiff notes that the deceased rendered services to her, whether by providing assistance on the farm or by performing “outside work” and generating financial income which produced a direct financial benefit. Either way, the plaintiff has lost a very significant financial benefit as a consequence of the death of the deceased.

110. The defendants submit that the loss of dependency claim should proceed upon a loss of two years of off-farm work at $350 net per week yielding a sum of $36,400. Reference is made to the contract labour provided by Mr Hutton and Mr Goltz to date which totals $9,315.60. The defendants accept that it is reasonable to allow a component to take account of the fact that the actual cost of their work was not fully charged. The defendants submit that an appropriate assessment for the past is based on $36,400 for loss of off-farm income to which should be added $15,000 for replacement labour and loss of domestic and farm labour services.

111. As for the future, the defendants submit that the deceased would have continued to work but that his future working life was limited by reason of his age, health conditions and the desire, expressed by the plaintiff, that they would have slowed down in the future. The defendants submit that it is difficult to assume that they would have continued a long time in the future.

112. I do not consider that the defendants’ submissions, and their calculation of the extent of the plaintiff’s financial dependency, together with a moderate amount for “loss of services” adequately reflects the loss of material benefit to the plaintiff of the loss of the deceased’s services, both to the farm as a partnership business and to the farm as a well-maintained home. This is not a typical case of loss of dependency in a two-income family where the survivor’s loss is conveniently valued by reference to the loss of the deceased’s salary (less an amount which would have been expended solely or jointly on the deceased) and the loss of domestic services. Even during the “drought years”, one is concerned with the loss of “outside income” and the loss of the deceased’s contribution to the farm in all of its aspects.

113. The latter included the maintenance of the farm, its buildings, its fences and equipment. The maintenance of the farm served a number of purposes including:

1. primary production for the sale of cattle, vegetables, lucerne and other feed;

2. production of food for the consumption of the plaintiff and her husband;

3. maintenance of their home and its surroundings.

114. It is possible to conceive of the services that the respondent provided as principally services to a farming business, and that the provision of services to the maintenance of their home and in putting food on the table was incidental to this contribution to the business. Alternatively, it is possible to conceive of the services that the deceased provided as predominantly domestic services in maintaining the farming property upon which they chose to live, which provided for their daily needs, and that their home also served as a place of business. Neither view is entirely accurate since the farm was both a business and a home, and it also provided for the plaintiff and her husband’s needs in terms of meat and vegetables. Even in drought years the farm had these various aspects, and the deceased’s services on the farm were to the material benefit of the plaintiff in all of these aspects. In drought years the extent of vegetable production declined, but in all of its aspects the farm was still a source of benefit, and maintenance of the farm as a whole was necessary even for its reduced farm income and the welfare of its animals. Viewing the deceased’s services purely from the perspective of their contribution to the partnership business, the plaintiff as the surviving spouse lost the tangible benefit of the deceased’s contribution to the maintenance of the business and its income, even its reduced income during drought years. The partnership made a relatively small income from its fodder growing business during the drought years that preceded the accident. In the year ended 30 June 2008, five months of which post-dated the accident, this business made a loss of $5,155.  The defendants do not contend that the business was a loss-making business in the years prior to the accident.  Instead, the income which the plaintiff and her husband derived from it was modest.  The business was not particularly profitable in the years leading up to the accident, which included several drought years, and it may not have been particularly profitable in the long-run.  However, the plaintiff’s loss is not measured only by reference to the farm’s profit which she stood to share as an equal partner. 

115. The first matter is to identify the nature of her loss. The second is to measure that loss. The loss of material benefit to the plaintiff was the loss of the deceased’s services to the business, to the maintenance of the plaintiff’s home and its environs, and to the maintenance of the partnership’s assets. It also included the loss of domestic assistance. The loss suffered by the plaintiff was the loss of the deceased’s services in and about the farm, which was both a business and a home. The plaintiff reasonably expected that these services would continue. To adopt what was said in Black v Walden: “It was a loss that was suffered whether [the plaintiff] engaged another person to provide the same services for the business or not”.^[16]  The same can be said in respect of services which contributed to the home and the material support of the plaintiff.  These losses were suffered whether the plaintiff engaged another person to provide the same services or not.

116. I was initially attracted, in circumstances in which the plaintiff and the deceased were prepared to work from dawn to dark, seven days a week, in order to obtain a relatively modest combined income as farmers, to an approach that framed the plaintiff’s loss as the continuation of that modest income, not the value of the services the deceased provided, whether assessed by reference to the commercial cost of replacing them or some other measure. However, on reflection, to measure the plaintiff’s loss by reference to the net income which she and the deceased would have shared equally in their business had he survived, together with some relatively small amount on account of non-business services, does not adequately capture the nature of the loss of the plaintiff’s services, or their value.

117. What was lost was not simply the income of a husband who went off to work each day. The plaintiff’s loss is not limited to loss of services to the business in which she was a partner. Her loss is in respect of services on a farm which was both a source of income for her and her husband, and also their home. For so long as her husband lived, and subject to adverse contingencies such as drought and ill-health, he was able to maintain the farm as both a business and a home. The plaintiff depended upon the quality and quantity of his services as a farmer. Without his services as a farmer, she lost something of substantial value, the value of which substantially exceeds the modest income that she derived as a partner in the business as a result of his contributions to it. The nature of her loss is reflected in the rapid deterioration of the farm, both as a business and as a home, since her husband’s death. Even with the plaintiff working from dawn to dark, and with the occasional assistance of Mr Hutton and Mr Goltz, the farm has deteriorated in its condition. Its cattle are in a bad state. It grows grass and weeds rather than valuable crops. Fences are not repaired as they should be. Roads are not repaired. The plaintiff does not have time to look after her home and to keep it neat and tidy, as it once was, because she has to devote her time to working around the farm.

118. According to the tables submitted with the defendants’ submissions, the partnership’s income in the first full financial year after Mr Schimke’s death was $3,981 by way of a Centrelink exceptional circumstances relief payment, along with business income of $11,817. From this gross income there were expenses of $24,847 and what is said to have been a net loss of $19,995. According to the defendants’ schedules, the plaintiff’s income in 2009 was the aforesaid exceptional circumstances relief payment of $3,981 and a further amount of $3,449. Her taxable income was $4,875. In 2010 her taxable income was said to have been $8,925. I have had regard to the tax returns that became Exhibit 2, and have had difficulty in reconciling all of the figures in them. However, on any view, the decline in the plaintiff’s income in recent years is largely due to the death of her husband, not simply the continuation of the drought until it broke in late 2009.

It is convenient to consider the plaintiff’s loss of the material benefit of the deceased’s services in respect of drought years and non-drought years.  The defendants’ submissions contain a schedule of income for Mr Schimke during the drought years of 2004, 2005, 2006 and 2007.  The weekly net income is not materially different to that advanced by the plaintiff in a schedule to her original submissions.  Mr Schimke’s precise net income depends upon whether reference is had to wage records or other documents, and whether the small net income derived by the partnership, and shared equally by the plaintiff and her husband, is added to his wages income during these years.  According to the plaintiff’s schedule, the deceased’s net weekly earnings over these four years were $481.95 and the plaintiff’s net weekly earnings during the same period were $80.25.  Their combined average net weekly income was $560.  Adopting the methodology discussed by Professor Luntz this yields a dependency of $289.60 per week.^[17] This “dependency” figure equates to $15,059.20 per annum.  To this figure must be added the loss of the material benefit to the plaintiff of the deceased’s services to the farm.  The fact that during these drought years the farm yielded only a small income because the deceased was working away from it for a substantial time does not alter the fact that he contributed to the farm’s maintenance and its limited primary production during drought years.  The issue is how these services are to be valued.  Regard can be had to the commercial rate for such services.  However, this is only the starting point.  Thornton v Lessbrook Pty Ltd discussed the valuation of the loss of domestic services and the fact that regard may be had to the commercial cost of purchasing such services.^[18]  The authorities reviewed in that case indicated that a surviving spouse is not automatically entitled to damages calculated at commercial rates.  However, a number of authorities proceed to value lost services on the same basis as personal injury cases, namely at the commercial rate.  Still, commercial rates are not to be treated as “the invariable yardstick of the assessment”^[19] and may only be “a starting point in assessing a plaintiff’s loss”.^[20]  In some cases substitute services do not match the quality of the services lost as a result of the death of the deceased.  In other cases, applying the commercial rate may overvalue the loss in question.  The authorities, including Nguyen v Nguyen (No 2),^[21] support the proposition that the quantification of the loss must be kept within reasonable bounds. 

119. In this case the evidence of Mr Hutton establishes that an experienced farmer, such as the deceased was, can command $70 per hour in undertaking contract fencing work. Other farm work commands a lower rate. This is reflected in the income that the deceased earned in undertaking farming work for others during the drought years, and also in the amount charged by Mr Goltz for general work on the plaintiff’s farm in recent years. I am told that the plaintiff particularised her claim for loss of services at $25 per hour. In circumstances in which the plaintiff has been able to obtain Mr Hutton’s fencing services for far less than he would charge richer clients, it would be open to assess the loss occasioned by the deceased no longer being able to do fencing work at Mr Hutton’s commercial rate of $70 per hour, not the figure he actually charges the plaintiff. Mr Hutton charges the reduced rate because he is a good Christian, and follows the Biblical injunction about looking after widows and orphans. Mr Hutton’s charity was intended for the benefit of the plaintiff, not the defendants. However, I am not persuaded that his replacement services should be valued at the rate he can command from wealthy hobby farmers who ask him to do their fencing. The plaintiff would probably be unwilling or unable to pay this figure if Mr Hutton or someone else asked her to do so. I consider that an appropriate figure to value the loss of the deceased’s services on the farm is $25 per hour, being what I regard as the minimum hourly rate that the plaintiff would have to pay to obtain substitute services if she was in a financial position to pay.

120. One then turns to the number of hours per day to be adopted in measuring the plaintiff’s loss of the deceased’s services on the farm. Even when the deceased worked off the farm during drought years, he was still required to maintain the farm, and did so seven days per week. I consider that an appropriate figure to adopt for hours worked on the farm during the drought years is three hours per day on week days when he was working off the farm, and eight hours per day for the remaining two days. This produces a figure of 31 hours per week. At a rate of $25 per hour, this yields a weekly figure for loss of services to the farm of $775.

121. I shall first assess the loss of material benefit to the plaintiff during the drought years that followed her husband’s death. This is a period of approximately two years from February 2008 to February 2010. The loss of dependency from the plaintiff’s income is $289.60 per week. The 31 hours per week that I have assessed in respect of the deceased’s contribution to the farm yielded a relatively small amount compared to his off-farm income. I avoid double-counting it within the “dependency” figure that seeks to assess direct financial loss and also loss of services to an income-producing business. However, if the farm had produced little or no income in the few drought years following the deceased’s death, he still would have been required to devote most of the 31 hours that I have adopted towards care for its stock, other animals, production of feed for them, fencing, machinery maintenance and the other tasks that were required to maintain the farm. Applying a figure of $25 per hour to 31 hours per week produces a figure of $775. If this was to be added to a figure of $289.60 one would arrive at a weekly figure of $1,064.60. However, this figure should be discounted to avoid double-counting and to take account of adverse contingencies. Account should also be taken of purely domestic services such as washing up. Taking all of these matters into account I consider that an appropriate weekly figure for loss of direct financial benefits that would have been produced by the deceased’s services and other aspects of the loss of the deceased’s services during the drought years is a figure of $900 per week. Over a two year period this amounts to $93,600.

122. After the drought broke, the plaintiff and her husband would have been able to increase their primary production. For example, once water supplies were secure a potato crop could have been planted and this would have provided a greater return on Mr Schimke’s efforts than working off-farm. His off-farm work would have reduced and possibly been entirely replaced by on-farm work. Turning to the pre-trial period of between February 2010 and June 2011 (inclusive) it would be possible to calculate the plaintiff’s loss by reference to a combination of farm and non-farm income, with an additional figure for loss of services.  I have had regard to the plaintiff’s submissions which adopt this approach.  However, for these non-drought years, I prefer to value the plaintiff’s loss of material benefit from the loss of the deceased’s services by reference to the hours that Mr Schimke probably would have worked on the farm.  I adopt the daily figure of eight hours being the minimum that the plaintiff would have worked each day, save for periods of ill health and rare holidays.  He would have worked seven days per week.  Applying an hourly figure of $25 for the value of these lost services produces a figure of $1,400 per week.  I consider that this is an appropriate measure of the plaintiff’s loss of material benefit over the last 17 months.  The loss of the deceased’s services on the farm has had a number of consequences.  It is not simply that he is not around to work all day at a great pace and to a high standard.  Without her husband, the plaintiff is not able to plant and harvest a field of potatoes.  Even with the best will in the world, and her work ethic, she cannot do many of the jobs around the farm that her husband did.  I consider that a figure of $1,400 per week is an appropriate assessment of the loss of material benefit to the defendant from the loss of the deceased’s services over the last 17 months.  This equates to about 74 weeks, thus producing a figure of $103,600.  Account must be taken of the fact that in providing these services the deceased would have been producing income and crops, part of which would have satisfied his own personal needs, rather than joint needs or the plaintiff’s needs.  Some discounting is appropriate for contingencies.  I consider than an appropriate figure for the loss of material benefit to the plaintiff for the last 17 months is $85,000.

123. In summary, I assess the plaintiff’s loss of material benefit to trial at $178,600 ($93,600 + $85,000).

124. The parties agree that interest should be allowed at the rate of 2.5 per cent on past economic loss. I shall award interest on past loss at the rate of 2.5 per cent on $178,600 for a period of 176 weeks, namely $15,112.

125. As to the loss of material benefit in the future, the deceased would now be 66. The evidence concerning his health, work ethic, capacity for work at the time of the accident and future intentions persuades me that he probably would have continued to work as a farmer until aged at least 75, or a period of nine years from now. It is possible that during this time he would have found the harder work of potato harvesting too much to continue on its previous scale, and would either have scaled back the amount of heavy crop work he undertook, or ceased farming potatoes and grazed more cattle.

126. I will not separately assess future loss of direct financial benefits and future loss of services during this nine year period. I take account of a likely reduction in average farm income towards the end of that nine year period as the plaintiff and her husband reduced the extent of their potato crop production. However, for so long as they continued as farmers the plaintiff’s husband would have provided valuable services to the farming business and to the farm in general, and continued to provide services by way of maintenance of the farmhouse and other domestic services. I consider an appropriate measure of the loss of the deceased’s services to the farm for the next nine years as a figure of $1,000 per week. A period of nine years involves a multiplier of 380 or $380,000. This figure should be reduced in respect of contingencies other than the contingency of the plaintiff and her husband slowing down over the next nine years, which I have already incorporated. The figure of $380,000 should be discounted by 15 per cent on account of these contingencies to produce a figure of $323,000. The 15 per cent takes account of the comparatively short duration of the relevant period, general contingencies that feature in claims for future economic loss^[22] and the deceased’s age, health and personal circumstances. 

127. To the figure of $323,000 should be added an amount on account of the loss of the deceased’s services in and around the farm if the plaintiff and her husband both continued to live on the farm after 2020. The deceased would have had a life expectancy of 19.77 years. The loss of material benefit to the plaintiff from the loss of the deceased’s services between 2020 and the date of his death does not permit mathematical calculation. It is subject to numerous contingencies, including the contingency of the plaintiff pre-deceasing her husband. The loss must be given a present value. I consider an appropriate figure is $15,000. The total loss for the future is $338,000.

Summary of quantum

Plaintiff’s personal injuries

128. General damages	$8,600
     Past out-of-pocket expenses (including interest of $170)	$2,170
     Future treatment and pharmaceuticals	$2,000
     Total:	$12,770
     Loss of material benefit/dependency
     Past loss	$178,600
     Interest thereon at 2.5 per cent	$15,112
     Future loss	$338,000
     Funeral expenses (including interest of $570)	$7,316
     Total:	$539,028

The claim for personal injuries is not reduced on account of contributory negligence. The other claims are. The quantum of $539,028 is reduced by 65 per cent on account of the contributory negligence of the deceased. The award, so reduced, is $188,660. To this amount should be added the plaintiff’s damages for personal injury totalling $12,770.

129. There will be judgment for the plaintiff in the sum of $201,430.

130. I will hear the parties in relation to costs.