In a joint judgment, three appeal judges last week admonished QC Syd Williams for a “lack of understanding about domestic tasks” over trivialising gratuitous care submissions that had found favour with the trial judge, “rather than to defer to an acknowledged expert in the area”, occupational therapist Lesley Stephenson.
The court set aside judgment of $240,000 and instead awarded more than $700,000 to 41 yr old John Shaw, whose motorcycle was cut off by a wide load semitrailer in May 2006 as it manoeuvered to turn left over the top of him, from a centre lane in Granard Rd Rocklea.
In so doing it reversed a 70% liability apportionment against Shaw. The court found that the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (TORUM) section 28 requirements for permitting large vehicles to make a turn from the centre (rather than the left-most) lane, had not in fact been met and thus the prime mover driver was found to be 75% at fault.
The most notable feature on appeal, was, however, the court’s discussion of the plaintiff’s gratuitous care claim. The truck driver’s CTP insurer, Suncorp – represented by Jensen McConaghy Lawyers – had successfully argued through Williams at trial that the care claim was overstated and that the actual care provided failed to meet the s 59 of the Civil Liability Act threshold of 6 hrs per week for at least 6 months.
Shaw had sustained “serious and disabling injuries” including fractures to his neck (20% WPI), leg and arm and suffered an adjustment disorder. Despite “a rather laconic pleading” that did not refer to the s 59 thresholds, Ms Stephenson had included in her report a schedule specifying initial care needs of at least 14 hrs per week that reduced slightly after four months. Most of the care was provided by his partner.
Queen’s Counsel argued for Suncorp at trial and on appeal that Ms Stephenson had failed to isolate the time for the plaintiff’s care from that of his large family group and submitted that Mrs Shaw would have undertaken most duties anyway and thus “the extra time attributable to him was negligible”.
The court rejected this out of hand. “The approach in Van Gervan v Fenton, confirmed in CSR v Eddy, … is by reference to the cost of providing those services generally in the market. It would not, therefore, appear consistent with that authority to argue that in a family context a shorter period of time would (or should) be devoted to a plaintiff’s need….
Sensibly that assessment must be done on the basis of satisfying those needs as a single unit. This must be so, even more compellingly, when considering future care. Families break down, a partner might leave, children’s needs change and so on”.
Then came the sting in the tail: “There was a tendency, evident on appeal, of substituting the lawyers’ personal understanding (or, more accurately, lack of understanding) about domestic tasks, rather than to defer to an acknowledged expert in the area. There was no sound reason advanced to depart from the model proposed by Ms Stephenson.”
It should be noted that Mrs Shaw’s meal preparation was allowed because this was a task they had shared before the accident. According to her testimony “her husband contributed domestically just as much as she and as he loved cooking he had largely taken over that task prior to his accident”.
However the doing of tasks by his partner previously performed gratuitously by the plaintiff – babysitting – was disallowed because they preceded the s 59A ff CLA amendments. Finally, the court censured the plaintiff’s lawyers for failing “to have some system” such as the “long-standing practice that solicitors advise clients… to keep a weekly diary recording tasks and time to perform them by family members.” Failure to observe this practice said the court, “may mean that a deserving plaintiff may not cross” the s 59 thresholds.
At the end past care was assessed at nearly $50,000 and future care and $80,000. This compares to the “laconic” plea in the Statement of Claim for $11,400 (past) and $10,000 (future). Shaw v Menzies & Anor  QCA 197 White JA, Margaret Wilson AJA and Peter Lyons J 16/08/2011
  HCA 54
  HCA 64