Australia: QCA reverses trial judge's findings on liability apportionment and gratuitous services damages

Legal Directions - October 2011
Last Updated: 2 November 2011
Article by Richard Clayton
Shaw v Menzies & Anor [2011] QCA 197


In this case the Queensland Court of Appeal reversed the trial judge's finding as to apportionment of liability for the contributory negligence of the plaintiff. The Court also reviewed the authorities related to the assessment of damages for gratuitous services pursuant to s59 of the Civil Liability Act 2003 (Qld) ('CLA').


On 12 May 2006 the plaintiff was injured in a collision between his motorcycle and a semi trailer driven by the defendant. The semi trailer was fitted with indicator lights on the front, brake lights on its mudguards and a flashing amber light on the roof of the cab.There was a flashing amber light on the back of the trailer together with warning signage with the words 'oversized' and 'do not overtake turning vehicle'.

The accident occurred while the defendant was driving his semi trailer towards an intersection with the intention of turning left.

The plaintiff gave evidence that the semitrailer commenced to move across into the left hand lane and was slowing down. The plaintiff braked quite heavily and sounded his horn. The plaintiff gave evidence that the defendant then drove his vehicle 'back into his lane', at which point the plaintiff proceeded to move forward in relation to the semitrailer. Approximately 30 to 40m before the intersection the semi trailer again moved into the left hand lane. At that stage, the plaintiff was concerned about both the prime mover and the rear wheels of the defendant's trailer coming over into his lane. The plaintiff then accelerated to pass the semi trailer but collided with it.

Trial decision

In determining liability, the trial judge accepted that the left hand indicator lights were activated on both the prime mover and the trailer at the time of the accident. He found that the plaintiff had ample opportunity to observe the signs on the rear of the trailer, which should have placed him on alert.

Further, the fact that the semitrailer had slowed significantly should have alerted the plaintiff to the fact that the defendant was about to turn left in front of him. The defendant relied upon s28(2) of the Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld) ('TORUM Regulation') which stated that:

'(2) A driver may approach and enter the intersection from the marked lane next to the left lane as well as, or instead of, the left lane if -

(e) the driver can safely occupy the next marked lane and can safely turn left at the intersection by occupying the next marked lane, or both lanes.'

The trial judge was satisfied that the defendant was entitled to move from the middle lane when he sought to turn into Balham Road, with care and with due observance of the circumstances obtaining at that time. Importantly, he considered that s28(2) of the TORUM Regulation obliged the plaintiff 'to give way to the vehicle turning left'.

The trial judge therefore apportioned liability 70% against the plaintiff and 30% against the defendant.

In assessing damages for past gratuitous services, the trial judge did not accept that the plaintiff would meet the 6 hours per week for 6 months threshold as prescribed by s59(1) of the CLA. In particular, the primary judge did not accept the evidence of Lesley Stephenson, occupational therapist, in support of the claim for gratuitous services given that she did not appear to have taken into account that there were other members of the plaintiff's household when assessing the plaintiff's care requirements.

The trial judge found there was nothing to suggest that anything additional was required to be done, e.g. for meal preparation, to that which would have been done for other members of the household.

Accordingly, the trial judge awarded the plaintiff the sum of $790,233.85 for damages before apportionment (30% being $237,070.16).

Court of Appeal decision


In a unanimous decision, the Queensland Court of Appeal allowed the plaintiff's appeal. The Court found that the defendant carried out a manoeuvre which involved first moving to his left and then back to his right, before the turn. It was likely that the manoeuvre to the right would be misleading to a person in the plaintiff's position, as to the defendant's intention. Moreover, such a manoeuvre was likely to a lead a person in the position of the plaintiff to think that an indicator light indicated an intention to change lanes had been abandoned.

In respect of s28(2) of the TORUM Regulation, the Court found that the defendant's reliance on s28(2) was misplaced. In particular, the defendant was not authorised to approach and enter the intersection except from within the left hand lane. Accordingly, it follows that his manoeuvre made for the purpose of turning left into Balham Road was not authorised.

The Court found that the trial judge's reasons did not consider in detail the issues raised by s28(2). It follows then that His Honour erred in finding that, by virtue of s28(2), the defendant 'was entitled to move from the middle lane when he sought to turn into Balham Road'.

On the issue of the plaintiff's contributory negligence, it was noted that the defendant's left turn indicator had been activated and was visible to the plaintiff. Having said that, the defendant turned the prime mover to the right, even if only very briefly, before turning left into Balham Road. It was also noted that the final turn to the left must have occurred very shortly before the collision, leaving the plaintiff very little time at that point to take any evasive action.

The Court significantly reduced the plaintiff's apportionment of liability from 70% to 25% and attributed the remainder to the defendant.


On the issue of gratuitous services, the Court held that the meaning to be attributed to 'gratuitous services' in the CLA is its meaning at common law. The Court referred to the High Court decision of Van Gervan v Fenton where Mason CJ, Toohey and McHugh JJ said:

'The true basis of a Griffiths v Kerkemeyer is the need of the plaintiff for those services provided for him or her.'

The Court rejected the approach taken by the primary judge of the requirement to differentiate between domestic activity for the whole family and the specific domestic needs of the plaintiff. In accepting the reports of Ms Stephenson, the Court found:

  • The assessment of past and future gratuitous assistance must be done on the basis of satisfying those needs as a single family unit, when consideration is given to group tasks

  • The court must assess past and future gratuitous assistance by reference to the cost of providing those services in the market (see CSR v Eddy)

  • Ms Stephenson did approach her task with the plaintiff as an individual in mind in assessing his needs.

Having accepted Ms Stephenson's evidence, the Court made a finding that the plaintiff met the threshold of six hours per week for six months as required by s59 of the CLA for past gratuitous services.

On the issue of future gratuitous services, the Court referred to the decision of Kriz v King where the Court found that once the six hours per week for six months threshold is met, then damages for gratuitous services can be awarded, even if the services thereafter are provided or are to be provided for less than six hours per week. In the present claim, the Court allowed future domestic assistance at three hours per week.

Therefore, the Court ordered that judgment be entered for the plaintiff against the defendant in the sum of $704,418.04 plus costs.


The Court reversed the primary judge's findings on liability apportionment on the basis, inter alia, that the trial judge failed to properly interpret s28(2) of the TORUM Regulation.

On the issue of gratuitous assistance, the Court reiterated that when assessing a plaintiff's care requirements, it is not necessary for the expert to differentiate between domestic activity for the plaintiff's whole family and the specific domestic needs of the plaintiff when looking at group tasks. Further, the Court reiterated that when calculating gratuitous care claims commercial rates are applied in accordance with the previous High Court decision of CSR v Eddy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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