Brown v Holzberger

Case [2017] QCA 295

SUPREME COURT OF QUEENSLAND

CITATION:

Brown v Holzberger & Anor [2017] QCA 295

PARTIES:

ASHLEY DAVID BROWN
v
ROBERT WILLIAM HOLZBERGER
(appellant)
(first respondent)
AAI LIMITED trading as SUNCORP INSURANCE
ACN 005 297 807
(second respondent)

FILE NO/S:

Appeal No 4526 of 2017
SC No 5 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Bundaberg – [2017] QSC 54 (McMeekin J)

DELIVERED ON:

1 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2017

JUDGES:

Gotterson and Morrison JJA and Flanagan J

ORDERS:

1.   Appeal dismissed.

2.   Appellant to pay the respondents’ costs of the appeal on the standard basis.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS: FIRST HAND HEARSAY – where the appellant brought a proceeding against the respondents for damages for personal injuries and consequential loss and damage arising out of a traffic accident – where the appellant claimed the collision was caused by the negligence of the first respondent – where a witness who attended to the appellant at the scene testified that his first words were “I thought he’d stop” – where the learned primary judge determined the statement was not relevant and otherwise hearsay and ruled against its admission – where the appellant submits that the statement came within the res gestae exception to hearsay – whether the statement was relevant to a fact in issue – whether the statement formed part of the res gestae

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where a number of road users were witnesses at the trial – where the appellant submits that the various witnesses’ testimonies conflicted and should not have been accepted – where one witness gave evidence as to the high speed of the appellant’s motorcycle and location beside her vehicle, obscuring the appellant from the first respondent’s view – where the learned trial judge’s findings demonstrably supported that witness’ testimony – where the appellant challenges that witness’ testimony as unreliable – whether the learned primary judge erred by accepting that witness’ testimony

DAMAGES – PARTICULAR AWARDS OF GENERAL DAMAGES – QUEENSLAND – where the appellant sought damages for gratuitous services under s 59(1) of the Civil Liability Act 2003 (Qld) – where the learned trial judge was not satisfied that the appellant received gratuitous services for six hours or more per week for a period of six months as required by that section – where the appellant submits that the learned primary judge failed to accept evidence demonstrating this requirement was satisfied – where the appellant contends the learned primary judge erred by only considering the six month period immediately following the appellant’s discharge from hospital – whether the learned primary judge erred in his assessment of the evidence

Civil Liability Act 2003 (Qld), s 59

AAI Limited v McQuitty[2016] QCA 326, cited

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AGLC
Brown v Holzberger [2017] QCA 295
Case
[2017] QCA 295
Decision Date

CaseChat Overview and Summary

In Brown v Holzberger, the appellant, Brown, brought a proceeding against the respondents, Holzberger and another, for damages for personal injuries and consequential loss and damage arising out of a traffic accident. Brown claimed that the collision was caused by the negligence of Holzberger. A witness who attended to Brown at the scene testified that Brown's first words were “I thought he’d stop”. The learned primary judge determined the statement was not relevant and otherwise hearsay and ruled against its admission. Brown submitted that the statement came within the res gestae exception to hearsay. The court was required to decide whether the statement was relevant to a fact in issue and whether it formed part of the res gestae.

The court found that the statement did not fall within the res gestae exception to hearsay. The court held that the statement was not relevant to a fact in issue and did not form part of the res gestae. The court also found that the learned primary judge did not err in accepting the testimony of one of the witnesses who gave evidence as to the high speed of the appellant’s motorcycle and location beside her vehicle, obscuring the appellant from Holzberger’s view. The court held that the appellant failed to demonstrate that the learned primary judge's findings were clearly wrong. The court further held that the learned primary judge did not err in his assessment of the evidence regarding the gratuitous services under s 59(1) of the Civil Liability Act 2003 (Qld).

The appeal was dismissed, and the appellant was ordered to pay the respondents’ costs of the appeal on the standard basis.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the respondents’ costs of the appeal on the standard basis.

Background

Background to the litigation

To the east of the subject T-intersection, there is a slight dip in FE Walker Street. The dip impacts upon view along the roadway in either direction but oncoming vehicles remain in sight of each other.The unchallenged facts and the principal factual issues in dispute The learned trial judge recorded that it was common ground that the collision occurred on or about the fog line. The impact on the Hyundai was on the panel behind the rear passenger wheel.[10] It occurred at a time when the Hyundai had almost completed the turn.[11][10]Exhibit 25: AB573.[11]Reasons [8]. It was a fine, clear day.[12] The headlight on the motorcycle was illuminated.[13] The turn right indicator on the Hyundai was activated. The appellant did not see the activated indicator.[14] The first respondent did not see the motorcycle before the impact.[15][12]Reasons [4].[13]Reasons [6].[14]Reasons [10].[15]Reasons [9]. Within this context, the learned trial judge identified two principal disputed factual issues for resolution. They were the location of the motorcycle when the first defendant began his turn and the speed at which the appellant was travelling.[16][16]Reasons [11].The evidence as to those issues The appellant testified that he stopped at a red light at the Elliott Heads Road intersection. Of the two eastbound lanes, he was in the one on the left-hand side. He moved off when the lights changed. There was a green Toyota Hilux four-wheel drive in the eastbound lane on his right-hand side in the vicinity of the point where the two eastbound lanes merge. He merged in front of the Hilux about 150 metres west of the Reddan Street T-intersection. He was travelling about 60 kilometres per hour, the speed limit.[17][17]AB30 Tr1-30 l23 – AB31 Tr1-31 l34. According to the appellant, he saw the first respondent’s Hyundai when he was about two or three house properties from the T-intersection. It was moving and other vehicles were passing it on its left-hand side. He remembered next the Hyundai pulling in front of him in a turn into Reddan Street.[18] He recalled tapping his front brakes but there was no time for them to react. His motorcycle collided with the Hyundai and he was thrown from it.[19][18]AB31 Tr1-31 l42 – AB32 Tr1-32 l38.[19]AB35 Tr1-35 ll15-27. The learned trial judge observed that if the appellant’s account was accurate, his motorcycle should have been in plain view of the first respondent before the latter commenced his turn. There would have been no opportunity for the appellant to avoid the collision.[20][20]Reasons [16]. The defence called as witnesses a number of road users that morning. Leesa Smith, an experienced motorcyclist, was travelling eastbound to the rear of the appellant. She observed his motorcycle over about one kilometre of travel but lost sight of it about 800 metres west of the T-intersection. She noticed that, at one point, the appellant zigzagged in his lane, and at another point, he accelerated to about 80 kilometres per hour from a stop at lights.[21] His Honour regarded Ms Smith as being a very impressive witness.[22][21]AB312 Tr4-35 l17 – AB313 Tr4-36 l34.[22]Reasons [22].

Evidence

Evidence Before The Court

Within this context, the learned trial judge identified two principal disputed factual issues for resolution. They were the location of the motorcycle when the first defendant began his turn and the speed at which the appellant was travelling.[16][16]Reasons [11].The evidence as to those issues The appellant testified that he stopped at a red light at the Elliott Heads Road intersection. Of the two eastbound lanes, he was in the one on the left-hand side. He moved off when the lights changed. There was a green Toyota Hilux four-wheel drive in the eastbound lane on his right-hand side in the vicinity of the point where the two eastbound lanes merge. He merged in front of the Hilux about 150 metres west of the Reddan Street T-intersection. He was travelling about 60 kilometres per hour, the speed limit.[17][17]AB30 Tr1-30 l23 – AB31 Tr1-31 l34. According to the appellant, he saw the first respondent’s Hyundai when he was about two or three house properties from the T-intersection. It was moving and other vehicles were passing it on its left-hand side. He remembered next the Hyundai pulling in front of him in a turn into Reddan Street.[18] He recalled tapping his front brakes but there was no time for them to react. His motorcycle collided with the Hyundai and he was thrown from it.[19][18]AB31 Tr1-31 l42 – AB32 Tr1-32 l38.[19]AB35 Tr1-35 ll15-27. The learned trial judge observed that if the appellant’s account was accurate, his motorcycle should have been in plain view of the first respondent before the latter commenced his turn. There would have been no opportunity for the appellant to avoid the collision.[20][20]Reasons [16]. The defence called as witnesses a number of road users that morning. Leesa Smith, an experienced motorcyclist, was travelling eastbound to the rear of the appellant. She observed his motorcycle over about one kilometre of travel but lost sight of it about 800 metres west of the T-intersection. She noticed that, at one point, the appellant zigzagged in his lane, and at another point, he accelerated to about 80 kilometres per hour from a stop at lights.[21] His Honour regarded Ms Smith as being a very impressive witness.[22][21]AB312 Tr4-35 l17 – AB313 Tr4-36 l34.[22]Reasons [22]. The first respondent stated that he activated his right-hand turn indicator “probably 20 feet” before the intersection. He saw a dark green vehicle approaching about three house properties from the intersection. He did not see any motorcycle. He thought that there was enough time to turn right. He was travelling “at about 10 miles per hour”.[23] His vehicle had all but cleared the intersection when it was struck.[23]AB 337 Tr4-60 l14-35. His Honour assessed the first respondent as being an “obviously honest” witness.[24] However, he doubted the reliability of his estimates of distance, bearing in mind that he told police that he thought that before he turned, the oncoming vehicle he saw was “five car lengths, about 300 yards” away.[25][24]Reasons [25].[25]AB184 3-17 l1.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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