Court of Appeal Judgment Summary Notes

General Civil Appeals from the Supreme Court, Trial Division — Torts — Essentials of Action for Negligence — Special Relationships and Duties — Measure and Remoteness of Damages in Actions for Tort — Personal Injuries — Mr St Clair was the plaintiff in an action in which he claimed damages for personal injuries against Timtalla as first defendant and Aircraft Technicians of Australia (“ATA”) as fifth defendant — He obtained judgment in the sum of $1,729,566 against ATA — His action against Timtalla was dismissed — St Clair owned and controlled a company, The Shankman Pty Ltd, which hired a Robinson Helicopter from Timtalla in or about January 1994 — The only express terms of the agreement for hire were that (i) the plaintiff would pay Timtalla $100 for every hour which the helicopter flew and (ii) after every 100 hours’ flying time Timtalla would arrange to have the helicopter undergo a routine maintenance service — On 21 June 1994 the respondent was flying the helicopter to Alice Springs when the helicopter lost power and crashed — Both the plaintiff and his wife were seriously injured — It was common ground, at trial and on appeal, that the immediate cause of the helicopter losing power was the failure of what was called “the upper actuator bearing” — The bearing which failed had been manufactured by a company described in the judgment and submissions as “NTN” — The plaintiff’s case against Timtalla was that the NTN bearing had been installed in November 1992, (and was therefore on the helicopter when Timtalla hired it to Shankman), by Choppercare Pty Ltd, a wholly owned subsidiary of Timtalla, which was itself liable, or was vicariously liable for its negligence — The case against ATA which succeeded was that it had been engaged by Timtalla to conduct a 100 hourly service in July 1993 and the employee who undertook the services, Darren Fisher, negligently failed to observe that an NTN bearing had been fitted, and to remove it — On Appeal — The trial judge was right to reject the contention that Timtalla was liable vicariously for any negligence in Choppercare — The plaintiff’s submissions give insufficient weight to the finding of fact, not challenged, that Mr Avey, an engineer who was found to have fitted the clutch assembly in 1992, was employed by Choppercare — The submissions also pay insufficient regard to the separate corporate identities of Choppercare and Timtalla — The fact that they shared directors and that one was a wholly owned subsidiary of the other does not, obviously, detract from the basic premise that they were separate and distinct legal entities — The submissions do not provide any sufficient basis for doubting the trial judge’s finding that the respondent had not established any relationship between Timtalla and Choppercare so as to make the latter the agent of the former — Recent decisions of the High Court suggest that the imposition of non-delegable duty, or strict liability, is exceptional — The categories of case in which it applies should not therefore be expanded without some compelling reason — The judgments serve as a distinct warning against expanding the scope of non-delegable duty or strict liability — This case is one of an ordinary type where the owner or bailee of a chattel delivers it to a tradesman or a technician for service or repair — Timtalla did not have control of the circumstances to which the plaintiff, the beneficiary of the alleged duty, was exposed — The regulations made under the Civil Aviation Act 1988 (Cth) required Mr Fisher to carry out the maintenance in accordance with the approved maintenance information from Robinson — The maintenance manual did not expressly require engineers to check the provenance of any part — On the facts found by his Honour, ATA was put on notice that the bearing was not an approved part — The maintenance manual set out what was required during every 100 hourly inspection of the upper actuator bearing and it did not prescribe the removal of the seal or the greasing of the bearing — Mr Fisher embarked upon that additional work in addition to the work prescribed in the manual — In performing that work, the marks identifying NTN as the bearing manufacturer, the colour of the bearing seal, and the appearance of the bearing cage should have become apparent — In those circumstances, and where personal injury or loss of life was identified in the maintenance manual as a risk of failing to heed the emphatic warning against the substitution of the designated bearing, there is no reason to doubt that Mr Fisher’s duty of care extended to investigating the provenance of the bearing — In addition St Clair challenges the amount of the award for past economic loss from the date of the accident on 21 June 1994 until judgment on 20 August 2010 — The trial judge did accept that the plaintiff made genuine attempts to earn income after 1995 but was hampered “no doubt … to a considerable degree by his physical incapacity” — He and his then wife attempted a range of enterprises all of which were financially unsuccessful — The plaintiff’s success in Texas, USA, producing public “outback” sculptures has been little short of extraordinary — There is no doubt that the plaintiff had had a chequered past employment career prior to the accident but he was then still a young man clearly interested in travel and adventure — In focussing only upon the less favourable, St Clair was deprived of a more appropriate assessment of his past loss of earning capacity — If the positive contingencies had appropriately been taken into account by his Honour balanced by St Clair’s past employment history, a loss represented by $25,000 per annum, would better represent the effect of the accident injuries on the plaintiff’s earning capacity to trial — HELD: (Briefly) St Clair’s appeal against Timtalla dismissed with costs; ATA’s appeal against St Clair allowed in part in relation to costs only; St Clair’s cross-appeal allowed, judgment varied by entering judgment for the sum of $2,313,846 for St Clair with costs.

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Discovery and Interrogatories — Grounds for Resisting Production — Legal Professional Privilege — The appellant, Ms Wendy Felgate, underwent laparoscopic surgery on 14 November 2007 at the Royal Brisbane and Women’s Hospital — The respondent, Dr Paul Tucker, was her anaesthetist — During the surgical procedure, Ms Felgate experienced a phenomenon known as “surgical awareness”: she was conscious but paralysed and unable to communicate her state of consciousness to medical staff — Five days later, Ms Felgate gave Dr Tucker an initial notice of her claim for damages for personal injuries arising from this incident under s 9A Personal Injuries Proceedings Act 2002 (Qld) — During a subsequent compulsory conference between the parties under the Act, Dr Tucker produced a document entitled “Interpretation of anaesthetic record” which will be referred to as “the document” — Ms Felgate sought disclosure of the statement Dr Tucker gave to his lawyers on which the document was based — Dr Tucker claimed legal professional privilege and refused to produce any statement or notes concerning his instructions to his lawyers — Ms Felgate’s lawyers applied to a judge of the Trial Division in the applications jurisdiction for an order that Dr Tucker provide Ms Felgate with a copy of any relevant documents including any statements Dr Tucker made to his lawyers in respect of Ms Felgate’s claim for damages for personal injuries sustained on 14 November 2007 — On Appeal — Dr Tucker’s former solicitor, Ms Louise Marie Nixon, deposed that, after Dr Tucker was served with the initial notice under s 9A, she met with him, took his instructions and prepared a statement — The statement “was brought into existence for the purpose of enabling [Ms Nixon] to provide Dr Tucker with legal advice in relation to any anticipated judicial proceeding” — It is self-evident that the legal professional privilege with which this case is concerned is that between lawyer and client — Ms Nixon took a statement from Dr Tucker after he was served with the s 9A initial notice to enable her to provide him with legal advice about “any anticipated judicial proceeding” — Mr Crofts, another of Dr Tucker’s lawyers, took instructions from Dr Tucker in preparation for the compulsory conference — As the pre-court procedures mandated by the Act are an essential part of any future litigation, when Ms Nixon and Mr Crofts took Dr Tucker’s instructions resulting in the production of the document, their dominant purpose was in contemplation of future litigation — That was so even though the instructions also concerned the more immediate issue of meeting the mandatory pre-court procedures — As a result, those statements were privileged, unless the Act clearly stated otherwise — To construe the Act as removing the application of legal professional privilege to oral or documented communications between lawyers and clients would be extraordinary, even revolutionary — It follows that Dr Tucker’s controversial statements to his solicitors remained privileged under s 30(1) unless they were “reports” under s 30(2) — Clients’ instructions to lawyers and consequential notes and statements are not ordinarily considered reports — HELD: Appeal dismissed with costs.

General Civil Appeal from the Supreme Court, Trial Division — Torts — Negligence — Liability of Drivers of Vehicles — The appellant (the plaintiff) was injured in a collision between the motorcycle which he was riding, and a semi-trailer driven by the first respondent (the defendant) — At trial, liability was apportioned as to 70 per cent against the plaintiff, and 30 per cent against the defendant — On Appeal — There is no acceptable evidence that the plaintiff was exceeding the speed limit — There is no reason to disturb the learned primary Judge’s finding that the defendant had activated his left turn indicator, shortly prior to the collision — There is no reason to disturb the learned primary Judge’s finding rejecting the plaintiff’s description of the defendant’s manoeuvre from the middle lane, halfway across into the left lane, and back fully into the middle lane, before commencing the left turn into Balham Road — However, it is clear that the defendant carried out a manoeuvre which involved first moving to his left, and then back to his right, before the turn — Such a manoeuvre is likely to lead a person in the position of the plaintiff to think that an indicator light indicated an intention to change lanes, which intention had been abandoned — It may be accepted that occupation of the middle westbound lane by the defendant’s vehicle was, of itself, safe — The critical issue is whether the defendant could safely turn left at the intersection by occupying that lane, or that lane and the left-hand westbound lane — Absent some abnormal behaviour or erratic driving, the occurrence of the accident rather points to the fact that the turn could not be made safely — Even if the motorcycle were behind the defendant’s vehicle, the fact that the defendant was slowing down was likely to reduce the distance between the vehicles, and increase the risk of a collision — The conclusion that the turn could not, in the circumstances, be made safely, is supported by his Honour’s finding that the defendant’s manoeuvre “was an inherently dangerous one”, and by his attribution of liability to the extent of 30 per cent against the defendant — The defendant’s reliance on s 28 of the Transport Operations (Road Use Management — Road Rules) Regulation 1999 (Qld) was misplaced — The defendant was not authorised to approach and enter the intersection except from within the left-hand lane — It follows that his manoeuvre made for the purpose of turning left into Balham Road was not authorised — There remain, however, findings which point to contributory negligence on the part of the plaintiff — In the result, liability should be apportioned as to 75 per cent against the defendant, and 25 per cent against the plaintiff — The plaintiff has confined his grounds of appeal insofar as they relate to the quantum of damages assessed by the trial judge to the failure to make any award under s 59 of the Civil Liability Act 2003 (Qld) for gratuitous services rendered to him by his wife and mother-in-law, and his Honour’s failure to award interest on the plaintiff’s assessed loss of past earning capacity — The defendant concedes that interest on past economic loss ought to have been awarded (after taking into account the net WorkCover benefits received) — Ms Stephenson, an occupational therapist, prepared a table to show how much assistance with domestic tasks the plaintiff required for “5 months post injury” — There was a tendency, evident on the 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 — The plaintiff will require, for the future, domestic assistance of the kind described above for three hours per week — HELD: (Briefly) Appeal allowed, Judgment be entered for the plaintiff in the sum of $704,418.04 with costs.