Blenner's Transport v Dowling - [2021] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Blenner’s Transport & Anor v Dowling [2021] QDC 249

PARTIES:

BLENNER'S TRANSPORT QLD PTY LTD ACN 169 008 495

(first plaintiff)

and

BLENNER'S TRUCK HIRE PTY LTD ACN 155 324 735

(second plaintiff)

v

WILLIAM HAROLD AUSTIN DOWLING

(defendant)

FILE NO:
111/20

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

8 October 2021

DELIVERED AT:

Cairns

HEARING DATE:

10 May 2021

JUDGE:

Morzone QC DCJ

ORDER:

1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25.

2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis.

CATCHWORDS:

CIVIL PROCEEDING – NEGLIGENCE – bailee – whether the defendant owe the plaintiffs a duty of care – whether the defendant breach his duty of care to the plaintiffs – the defendant’s breach of duty cause the plaintiffs’ loss and damage – whether the loss and damage foreseeable and not to remote – whether the first or second plaintiff contributorily negligent – what is the assessment of damages (if any).

LEGISLATION:

Civil Proceedings Act 2011 (Qld) s 58
Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld) s 300

Work Health and Safety Act 2011 (Qld) s 267

CASES:

Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220

Powercor Australia Limited v Thomas [2012] VSCA 87

SOLICITORS:
MacDonnells Law for the first and second plaintiff

Defendant was self-represented

Introduction

The first and second plaintiffs, who were respectively goods carriers and truck owners, sue the defendant driver for $581,991.00 because he lost control and crashed the fruit laden truck amidst answering his mobile phone.
The defendant says that his judgment (in answering the call) was impaired due to cumulative fatigue, the plaintiffs’ system of progress calls, and/or the absence of an integrated handsfree device in the truck. He also argues that, but for the overweight and unbalanced load, and/or the truck’s malfunctioning lane departure warning system, he could have righted the truck without crashing. Or alternatively, he argues that such matters caused or contributed to the crash.
The determinative issues in the proceeding are:
1.   Did the defendant owe the plaintiffs a duty of care?
2.   Did the defendant breach his duty of care to the plaintiffs?
3.   Did the defendant’s breach of duty cause the plaintiffs’ loss and damage?
4.   Was the loss and damage foreseeable and not too remote?
5.   Was the first or second plaintiff contributorily negligent?
6.   What is the assessment of damages?
I have found that the defendant as bailee owed a duty of care to the plaintiffs and that he breached that duty by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blenner's Transport v Dowling

Details

AGLC: Blenner's Transport v Dowling [2021] QDC 249
Case: [2021] QDC 249
Decision Date: 8 October 2021

CaseChat Overview and Summary

Blenner's Transport and two of its employees, the first and second plaintiffs, brought an action against Dowling, the defendant, for damages arising from an incident involving the defendant's car and a truck owned by Blenner's Transport. The dispute was heard and determined in the District Court of Queensland. The plaintiffs sought compensation for personal injuries and economic loss sustained in the incident, as well as interest and costs.

The court had to determine whether the defendant owed the plaintiffs a duty of care, whether this duty was breached, and if the breach caused the plaintiffs' loss and damage. Additionally, the court had to consider if the loss and damage were foreseeable and not remote, as well as whether the plaintiffs were contributorily negligent. The court also had to assess the appropriate amount of damages to be awarded to the plaintiffs.

The court found that the defendant did owe the plaintiffs a duty of care, and that this duty was breached. The court held that the breach caused the plaintiffs' loss and damage, which was foreseeable and not remote. The court also found that the plaintiffs were not contributorily negligent. In assessing the damages, the court awarded the plaintiffs a total sum of $545,312.25, along with interest and costs.

The court ordered that the defendant pay the plaintiffs $545,312.25 plus interest from 18 September 2018 until the date of judgment at the prescribed rate. Unless either party filed and served an application for a different costs order within 14 days of the judgment, the defendant would also pay the plaintiffs' costs of the proceeding to be assessed on the standard basis.

Orders

Orders of the court

1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25.

2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).

3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Costs ought follow the event unless the interests of justice are demonstrated otherwise.Conclusion For these reasons, I will give judgement to the first and second plaintiffs against the defendant and make the following orders:1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25.2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Blenner’s Transport & Anor v Dowling [2021] QDC 249
PARTIES:	BLENNER'S TRANSPORT QLD PTY LTD ACN 169 008 495 (first plaintiff) and BLENNER'S TRUCK HIRE PTY LTD ACN 155 324 735 (second plaintiff) v WILLIAM HAROLD AUSTIN DOWLING (defendant)
FILE NO:	111/20
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	Cairns
DELIVERED ON:	8 October 2021
DELIVERED AT:	Cairns
HEARING DATE:	10 May 2021
JUDGE:	Morzone QC DCJ
ORDER:	1. Judgment for the first plaintiff and second plaintiff against the defendant in the sum of $545,312.25. 2. The defendant will pay interest on the $545,312.25 from 18 September 2018 until the date of judgment at the prescribed rate pursuant to s 58 of the *Civil Proceedings Act 2011* (Qld). 3. Unless either party files and serves an application for a different costs order within 14 days of this judgment, I will also order that the defendant will pay the plaintiffs’ costs of the proceeding (including reserved costs) to be assessed on the standard basis.
CATCHWORDS:	CIVIL PROCEEDING – NEGLIGENCE – bailee – whether the defendant owe the plaintiffs a duty of care – whether the defendant breach his duty of care to the plaintiffs – the defendant’s breach of duty cause the plaintiffs’ loss and damage – whether the loss and damage foreseeable and not to remote – whether the first or second plaintiff contributorily negligent – what is the assessment of damages (if any).
LEGISLATION:	Civil Proceedings Act 2011 (Qld) s 58 Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld) s 300 Work Health and Safety Act 2011 (Qld) s 267
CASES:	Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 Powercor Australia Limited v Thomas [2012] VSCA 87
SOLICITORS:	MacDonnells Law for the first and second plaintiff Defendant was self-represented