Brown v Daniels

Case [2018] QSC 209

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Daniels & Anor [2018] QSC 209

PARTIES:

SHAYNE MAXWELL BROWN

(plaintiff)

v
JAY LESLIE DANIELS
(first defendant)
RACQ INSURANCE LTD ABN 50 009 704 152

(second defendant)

FILE NO:

Rock No 826 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

14 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 and 29 August 2018

JUDGE:

Davis J

ORDER:

1.   Judgment for the plaintiff in the sum of $2,098,590.23.

2.   I will hear the parties on costs.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where the plaintiff tendered a report of an engineer as the report of an expert – where the defendant objected – where a number of the objections were conceded – whether the expert’s conclusions were as an expert or factual conclusions better made by the Court

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – where the defendant was travelling down a road that terminated at a T-intersection with a road the plaintiff was travelling down – where the plaintiff struck the defendant’s vehicle and was injured – whether the defendant was responsible for the plaintiff’s injury – whether the plaintiff was contributorily responsible

Civil Liability Act 2003 (Qld) s 9, s 12

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 423, r 429

Anikin v Sierra (2004) ALJR 452, considered
Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429, considered
Brown v Holzberger [2017] 2 Qd R 639, considered
Fox v Percy (2003) 214 CLR 118, considered
McQuitty v Midgley & Anor (2016) 74 MVR 374; [2016] QSC 36, cited
R v Bjordal (2005) 93 SASR 237, cited
R v Faulkner [1987] 2 Qd R 263, cited
Read v Nominal Defendant [2007] QSC 297, cited
Sibley v Kais (1966) 118 CLR 424, considered
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, cited
Trompp v Liddle (1941) 41 SR (NSW) 108, considered
Vairy v Wyong Shire Council (2005) 223 CLR 442, cited

Wallace v Kam (2013) 250 CLR 375, cited

COUNSEL:

A R Philp QC with S Deaves for the plaintiff

M Grant-Taylor QC with C K George for the defendant

SOLICITORS:

VAJ Byrne & Co for the plaintiff

Quinlan Miller & Treston for the defendant

  1. The plaintiff Mr Brown sues for damages for personal injuries suffered on 12 February 2013 when the motorcycle he was riding collided with a Ford utility (the utility) which was driven by the first defendant and which was towing a horse float.  The second defendant is the compulsory third party insurer of the utility.  In these reasons, I generally refer to the second defendant only as “the defendant”.

  2. In the course of the trial Mr Philp QC, who led Mr Deaves for the plaintiff, sought to tender a report of an engineer Dr Kahler who Mr Philp QC intended to call to give…

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Details
AGLC
Brown v Daniels [2018] QSC 209
Case
[2018] QSC 209
Decision Date

CaseChat Overview and Summary

The case of Brown v Daniels involved a road accident where the plaintiff, Mr Brown, collided with the defendant, Mr Daniels, who was driving a utility vehicle. The plaintiff sustained injuries as a result of the collision and sought compensation. The court was required to determine whether the plaintiff's injuries were caused by the defendant's negligence and whether the plaintiff was contributorily responsible for the accident. The primary issue in this case was the admissibility of expert evidence provided by Dr Kahler, an engineer, in relation to the cause of the collision. The defendant objected to Dr Kahler's evidence on the grounds that it breached the requirements of r 429 of the Uniform Civil Procedure Rules (UCPR) and that the evidence was not admissible expert opinion evidence. The court considered the objections and ruled that while the defendant's objection based on r 429 was dismissed, some of the objections regarding the admissibility of expert opinion evidence were upheld.

The court found that while Dr Kahler's report was indeed late, the delay did not significantly impact the fairness of the trial. However, the court upheld some of the objections regarding the admissibility of expert opinion evidence, ruling that certain parts of Dr Kahler's conclusions were factual conclusions better made by the court rather than as an expert. The court ultimately concluded that the defendant, Mr Daniels, was responsible for the plaintiff's injury, and the plaintiff was not contributorily responsible. The court awarded the plaintiff damages in the sum of $2,098,590.23. The court also noted that it would hear the parties on costs.

Orders

Orders of the court

1. Judgment for the plaintiff in the sum of $2,098,590.23.

2. I will hear the parties on costs.

Background

Background to the litigation

In the course of the trial Mr Philp QC, who led Mr Deaves for the plaintiff, sought to tender a report of an engineer Dr Kahler who Mr Philp QC intended to call to give expert evidence relating to the cause of the collision. Mr Grant-Taylor QC, who led Mr George of counsel for RACQ Insurance Ltd,[1] objected to Dr Kahler’s evidence on grounds and in circumstances which I will later describe. I made rulings on the admissibility of that evidence but reserved my reasons. These reasons for judgment deal both with Dr Kahler’s evidence and the claim generally. [1] There was no separate appearance for the first defendant.Uncontentious background On 12 February 2013 at about 4.30 pm, Mr Brown was riding his vintage 1970 Harley-Davidson motorcycle in a northerly direction on the Gladstone-Monto Road. He was heading towards Ubobo, where he lives. About 1.2 kilometres south of the accident site, the Gladstone-Monto Road winds through a series of bends before crossing a one-lane bridge over Ridler Creek. From the bridge, the road takes a straight, fairly gentle incline for a short distance and then leads into a sweeping right hand bend followed by a relatively short straight stretch of road which leads up to the intersection with Collingwood Lane. From the bridge travelling north, the road bears double continuous white centre lines. Once through the right-hand bend, the line on the western side becomes broken and the line on the eastern side remains unbroken.[2][2] Drive-through footage, exhibit 16. Collingwood Lane is a dirt road which runs east-west and intersects with the Gladstone-Monto Road from the east forming a T-intersection. To a motorist who is on the Gladstone-Monto Road south of the intersection and travelling north, the intersection will appear on the right. To a motorist facing the intersection on Collingwood Lane, Mr Brown was approaching from the left. The two roads do not intersect at a right angle. There is an angle of 55 degrees between the two roads on the southern side of the intersection.[3][3] Report of Dr Roger Kahler of InterSafe, ex 22 at 3. There are trees and scrub on both sides of Collingwood Lane. However, near the intersection there is only low grass so that the view from a vehicle in the lane and at the intersection is clear, looking both north and south. To a driver of a vehicle in Collingwood Lane positioned at the intersection with the Gladstone-Monto Road, there is a line of sight south onto the exit of the right-hand bend.[4][4] Drive-through footage, ex 16. The intersection is only a couple of kilometres from Mr Brown’s home at Ubobo.[5][5] Transcript at 1-99 ll 1–5. The utility was owned by Dominique Facer. There were three occupants of the utility at the time of the collision. They were all seated together. The first defendant Mr Daniels was driving. Sheldon McPartland was sitting next to him (obviously to Mr Daniels’ left) and Ms Facer was sitting to the left of Mr McPartland and therefore was the closest to the passenger side door. Messrs Daniels and McPartland and Ms Facer had been working on rural properties in the area. They were part of a larger group of workers who had been engaged in weed and vegetation control. This activity involved camping on the properties overnight.

Evidence

Evidence Before The Court

There is no doubt that the damage to the tray of the utility was caused in the collision.[12] [12] Transcript at 2-44 ll 6–9, 2-53 to 2-54 l 16.Dr Kahler’s evidence As previously observed, Mr Philp QC attempted to tender a report of Dr Kahler and Mr Grant-Taylor QC objected. Upon receipt of Dr Kahler’s report, about 16 months ago, the defendant’s solicitors commissioned a report from Dr Carnavas, another engineer. Drs Kahler and Carnavas conferred and a joint report was prepared. Mr Grant-Taylor QC’s position was that all reports were inadmissible, including those authored or partly authored by his witness, Dr Carnavas. Dr Carnavas had been retained, of course, to meet Dr Kahler’s evidence if the opinions of Dr Kahler were found to be admissible. Mr Grant-Taylor QC took objection to Dr Kahler’s evidence on two bases:(i)a breach of the requirements of r 429 of the Uniform Civil Procedure Rules (UCPR); and(ii)that the evidence (or at least part of it) was not admissible expert opinion evidence. The parties were content for all three reports to be received for identification so I could consider the admissibility issues.[13] I read the reports over lunch on the first day of the trial and then expressed some preliminary views on the admissibility on some of the matters stated in the reports.[14] Mr Grant-Taylor QC and Mr George produced an outline of submissions on the objections and I directed an outline to be prepared by the plaintiff. That occurred. Some concessions were made. I dismissed the objection based on r 429 and upheld some of the objections which were not conceded by the plaintiff. A copy of the report, redacted consistently with the rulings, came into evidence as Exhibit 22.[13] The reports became exhibits for identification A, B and C.[14] Transcript at 1-58 to 1-60. Rule 429 of the UCPR provides as follows:“429 Disclosure of reportA party intending to rely on a report must, unless the court otherwise orders, disclose the report—(a) if the party is a plaintiff—within 90 days after the close of pleading; or(b) if the party is a defendant—within 120 days after the close of pleading; or(c) if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party.” There is no doubt that the rule has been broken. The pleadings in the case closed on 10 February 2017 upon the service of the plaintiff’s reply.[15] Dr Kahler’s report was therefore required to be disclosed by 11 May 2017 but was not disclosed until almost a month later. The defendant’s report is also late but of course that cannot fairly be said to be through the fault of the defendant, given that the plaintiff had breached the rule with the late delivery of Dr Kahler’s report.[15] UCPR r 169(a). Dr Carnavas’ report is dated 21 May 2018, roughly a year after Dr Kahler’s report was prepared and delivered. The joint report is dated 29 June 2018. Rule 429 is contained within Part 5 of Chapter 11 of the UCPR. Chapter 11 is entitled “Evidence” and Part 5 is entitled “Expert evidence”. Rule 423 identifies “the main purposes” of Part 5. Rule 423 is as follows:“423 Purposes of pt 5The main purposes of this part are to—(a) declare the duty of an expert witness in relation to the court and the parties; and(b) ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and(c) avoid unnecessary costs associated with the parties retaining different experts; and(d) allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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