Bailey v Nominal Defendant

[2003] QSC 433

SUPREME COURT OF QUEENSLAND

CITATION:

Bailey v  Nominal Defendant [2003] QSC 433

PARTIES:

PETER JOHN BAILEY
(Plaintiff)
v
NOMINAL DEFENDANT
(Defendant) 

FILE NO/S:

S.969 of 1999

DIVISION:

Trial

PROCEEDING:

Application  for damages

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

19 December 2003

DELIVERED AT:

Townsville

HEARING DATE:

8-10 December 2003

JUDGES:

Cullinane J

ORDER:

I give judgment for the plaintiff against the defendant in the sum of $523,481.65.

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where plaintiff suffered injuries when his vehicle was involved in accident – where plaintiff was only witness to accident – whether plaintiff’s uncorroborated account is to be accepted

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF DAMAGES – where plaintiff suffered physical injuries in accident and subsequently suffered psychiatric injuries – where plaintiff’s use of illicit drugs may have contributed to his psychiatric condition – whether subsequent injuries flowed from the accident – whether tortfeasor is liable in damages for losses which flowed from psychiatric condition

COUNSEL:

J Griffin QC, with him P Lafferty, for the plaintiff

K Wilson SC for the defendant

SOLICITORS:

Roati and Firth for the plaintiff
Walsh Halligan Douglas for the defendant

1. The plaintiff sues the Nominal Defendant for damages for personal injury sustained by him when a Ford Falcon sedan then being driven by him in an easterly direction along the Sunshine Motorway near Buderim left the roadway and overturned. 

1. It is accepted that the requirements as to due search and notice have been satisfied.

1. The incident occurred just before 1 a.m. on 26^th September 1997.  The plaintiff was alone in his vehicle.

1. The plaintiff who was born on 6^th December 1978 was, at the time, a member of the army and was in the process of returning after a period of leave to Lavarack Barracks, Townsville where he was based.

1. He is currently in receipt of a disability support pension.

1. It is the plaintiff’s case that as he was driving in an easterly direction at about 100 kilometres per hour and as he came to a gentle left hand curve in the roadway, he was faced with a semi trailer on, or substantially on, his side of the roadway.  He swerved to avoid it, losing control as he did so.   His description of the vehicle was of a “truck trailer”, giving the example of a Woolworths prime mover with refrigerated enclosed trailers.  He had been aware of the lights of an approaching vehicle. 

1. There are photographs taken by a police officer, Constable Church, on the evening of the accident, an aerial photograph of the area and a brief sketch drawn by the plaintiff.

1. The plaintiff initially gave evidence that he thought the vehicle was about 50 metres from him when he saw its lights and that it was on his side of the road.  Subsequently he estimated that it would have been at about 100 metres that he realised it was on the incorrect side of the roadway.

1. Constable Church…