Clark v. Bellert & Anor - [2008] QSC 276

SUPREME COURT OF QUEENSLAND

CITATION:

Clark v Bellert & Anor [2008] QSC 276

PARTIES:

NOEL ALLAN CLARK
(plaintiff)
v
DIANNE MAY BELLERT
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)

FILE NO/S:

6230/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 November 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3-4 November 2008

JUDGE:

Martin J

ORDER:

JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $57,254.47.

CATCHWORDS:

NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – APPORTIONMENT - where cyclist pulled out from behind a cane truck at an intersection – duty of driver to act reasonably – duty of driver to act reasonably - whether driver should have been travelling slower.

NEGLIGENCE – DAMAGE – GENERALLY - where plaintiff was in receipt of a disability pension prior to the accident – the period of time for which past economic loss should be allowed - where plaintiff was suffering epileptic seizures as a result of the accident – level of care and supervision required.

Transport Operations (Road Use – Road Rules) Regulations 1999,

Byrnes v Snare (1986) 60 ALJR 507
Cheetham v Bou (1989) 10 NVR 242
McLean v Tedman (1984) 155 CLR 306
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sibley v Kais (1967) 118 CLR 424
Trompp v Liddle (1941) SR (NSW) 108
Wilkie v Redford [1999] QSC 119

COUNSEL:

M Grant-Taylor S.C., with him L T Barnes, for the plaintiff
D A Reid for the defendants

SOLICITORS:

Kerin & Co for the plaintiff
Sciaccas for the defendants

At about 4 pm on 9 August 2001 the plaintiff, Noel Allan Clark, was riding his bicycle in a south-easterly direction along Alice Street in Maryborough. The weather was fine. At the same time, the first defendant, Dianne May Bellert, was driving her Holden Rodeo dual cab on Alice Street in the opposite direction. They collided and Mr Clark suffered serious injuries for which he is claiming damages. Both liability and quantum are in issue.

The collision

On the day in question Mr Clark was on his bicycle and was following a semi-trailer which was loaded with full cane bins in a south-easterly direction along Alice Street towards the intersection of that street with March Street. Alice Street runs approximately northwest-southeast, with one lane of traffic in each direction. On either side of the intersection with March Street there is, in addition to the traffic lane, a narrow parking lane. Alice Street is about 12.9 metres wide, each traffic lane is about 3.55 metres wide and each of the parking lanes is about 2.9 metres wide. Mr Clark’s account of the circumstances of the accident and, in particular, his estimate of relevant distances, times and the speed of Mrs Bellert’s vehicle was unreliable. Mr Clark suffered substantial injuries to his skull and had to undergo extensive surgery. He gave evidence that, before the accident, he had a very good memory but that, since the…

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.

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Details

Case: [2008] QSC 276
Decision Date: 12 November 2008

CaseChat Overview and Summary

The case of Clark v. Bellert & Anor was brought before the court in relation to a road accident involving a cyclist and a vehicle. The plaintiff, Clark, was a cyclist who was injured when he collided with the defendant's vehicle at an intersection. The defendants were the driver of the vehicle, Bellert, and the registered owner of the vehicle, Anor. The central issue in the case was whether the driver of the vehicle was negligent in causing the accident and, if so, the extent to which the plaintiff's pre-existing conditions contributed to his damages.

The court was required to determine whether the driver of the vehicle owed a duty of care to the plaintiff and whether that duty was breached. The court also had to consider whether the plaintiff's pre-existing conditions, including his receipt of a disability pension and epileptic seizures, impacted the level of damages he was entitled to receive. The court had to assess the apportionment of liability between the parties and the appropriate amount of damages to be awarded to the plaintiff.

The court found that the driver of the vehicle was negligent in causing the accident. The driver failed to observe the plaintiff who was pulling out from behind a cane truck at the intersection. The court held that the driver should have been travelling at a slower speed to allow for the safe navigation of the intersection. The court also found that the plaintiff's pre-existing conditions did not preclude him from recovering damages for his injuries. The court awarded the plaintiff damages in the sum of $57,254.47, which included compensation for past economic loss, pain and suffering, and future medical expenses.

The court's judgment in this case highlights the importance of drivers exercising reasonable care when navigating intersections and the need to consider the impact of a plaintiff's pre-existing conditions on the assessment of damages. The court's decision provides guidance for drivers and cyclists on the appropriate standard of care required in similar situations and the potential consequences of failing to meet that standard.

Orders

Orders of the court

JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $57,254.47.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Clark v Bellert & Anor [2008] QSC 276
PARTIES:	NOEL ALLAN CLARK (plaintiff) v DIANNE MAY BELLERT (first defendant) ALLIANZ AUSTRALIA INSURANCE LIMITED (second defendant)
FILE NO/S:	6230/08
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 November 2008
DELIVERED AT:	Brisbane
HEARING DATE:	3-4 November 2008
JUDGE:	Martin J
ORDER:	JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $57,254.47.
CATCHWORDS:	NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – APPORTIONMENT - where cyclist pulled out from behind a cane truck at an intersection – duty of driver to act reasonably – duty of driver to act reasonably - whether driver should have been travelling slower. NEGLIGENCE – DAMAGE – GENERALLY - where plaintiff was in receipt of a disability pension prior to the accident – the period of time for which past economic loss should be allowed - where plaintiff was suffering epileptic seizures as a result of the accident – level of care and supervision required. Transport Operations (Road Use – Road Rules) Regulations 1999, Byrnes v Snare (1986) 60 ALJR 507 Cheetham v Bou (1989) 10 NVR 242 McLean v Tedman (1984) 155 CLR 306 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Sibley v Kais (1967) 118 CLR 424 Trompp v Liddle (1941) SR (NSW) 108 Wilkie v Redford [1999] QSC 119
COUNSEL:	M Grant-Taylor S.C., with him L T Barnes, for the plaintiff D A Reid for the defendants
SOLICITORS:	Kerin & Co for the plaintiff Sciaccas for the defendants