Drzyzaga v Nominal Defendant

[2012] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Drzyzaga v Nominal Defendant [2012] QDC 323

PARTIES:

STEPHAN CONSTANTY DRZYZAGA
(plaintiff)

v

NOMINAL DEFENDANT
(defendant)

FILE NO:

D3850/2011

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

29 February, 1, 2 March 2012

JUDGE:

McGill SC, DCJ

ORDER:

Judgment that the defendant pay the plaintiff $111,663.24      including $433.60 by way of interest.

CATCHWORDS:

NEGLIGENCE – Motor Vehicle – single vehicle accident – whether accident occurred as alleged – whether negligence of unidentified vehicle – whether contributory negligence.

Motor Accident Insurance Act 1994 s 31(2).

Ballesteros v Chidlow [2006] QCA 323 – cited.
Harrison v Nominal Defendant (1976) 50 ALJR 330 – applied.
Van Muyen v Nominal Defendant [2002] QSC 344 – cited.

COUNSEL:

J P Kimmins for the plaintiff
R Dickson for the defendant

SOLICITORS:

Shine Lawyers for the plaintiff
Broadley Rees Hogan lawyers for the defendant

1. On 24 February 2009 the plaintiff was driving a semi-trailer south along the Pacific Highway to the exit for the Nerang-Broadbeach Road.  He was delivering a load of merchandise to Woolworths at Broadbeach, and accordingly took the exit ramp which climbs out of a long cutting through which the highway runs; the Nerang-Broadbeach Road itself passes over the highway on a bridge at more or less the former ground level.  As the exit ramp approaches that road it divides into two lanes for traffic turning right at the overbridge, a turn controlled by traffic signals, and a slip lane for traffic turning left onto that road, a turn permitted at any time with care.  Close to the road there is a traffic island roughly triangular in shape between the slip lane and the other lanes. 

1. The plaintiff ought to have turned into the slip lane to proceed east along that road, but in fact his vehicle ran on to the traffic island and came to a stop close to a pole supporting street lights.  The plaintiff claims that as a result he suffered personal injury, and that he ended up in this position because he had swerved to avoid a vehicle which had inappropriately pulled up in front of him in the left turning slip lane, causing him to swerve to the right to avoid colliding with it.  The plaintiff has not been able to ascertain the identity of that vehicle.  Liability and quantum are both in issue.

The plaintiff’s version

1. The plaintiff said that when he came to the exit he took the cruise control off and lifted his foot from the accelerator which automatically applied the Jake brakes, slowing the vehicle down: p 22.  He had been following a four wheel drive about 40 m in front of him for some time and it also went up the exit ramp.  The four wheel drive proceeded into the left lane leading to the set of lights at the road: p 23.  As he was going up the exit ramp and approaching the slip lane to turn left…