Elordi v Nominal Defendant (Qld)

[1996] QCA 370

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 281 of 1995
Brisbane
[Elordi v. Nominal Defendant]
BETWEEN:

AMAYA ELORDI

(Plaintiff) Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

(Defendant) Respondent

FITZGERALD P.
DAVIES J.A.

LEE J.

Judgment delivered 04/10/1996

REASONS FOR JUDGMENT - THE COURT

Appeal allowed with costs to be taxed.
Judgment below set aside, and order that judgment be entered for the appellant in the sum
of $21,713.00 and that the respondent pay the appellant’s taxed costs of and incidental to the

action.

CATCHWORDS:	PERSONAL INJURIES - motor cycle accident - offending motor cycles unregistered and uninsured - both parties involved in the accident in their mid teens - due to head injury sustained by the appellant at the time of the accident unable to give evidence - apportionment of liability.
McHale v. Watson (1966) 115 C.L.R. 199 Tamwoy v. Solomon (Appeal No. 76 of 1995, unreported, 10 October 1996)
Counsel:	K.D. Dorney Q.C. with him R. Douglas for the Appellant S.C. Williams Q.C. with him K.N. Wilson for the Respondent
Solicitors:	V.R. Moffatt & Associates for the Appellant Walsh Halligan Douglas for the Respondent
Date(s) of Hearing:	25 September 1996
IN THE COURT OF APPEAL	[1996] QCA 370
SUPREME COURT OF QUEENSLAND	Appeal No. 281 of 1995
Brisbane
Before	Fitzgerald P. Davies J.A. Lee J.

[Elordi v. Nominal Defendant]

BETWEEN:

AMAYA ELORDI

(Plaintiff) Appellant

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

(Defendant)	Respondent
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/10/1996

This is an appeal by an unsuccessful plaintiff from an ex tempore judgment delivered in the District Court

at Mt Isa on 23 November 1995. The appellant was injured on the afternoon of 31 March 1990 when

two unregistered and uninsured motor cycles collided on a recreation reserve near Mt Isa. The

appellant, who was the rider of one of the motor cycles, and the rider of the other motor cycle, John

Slater, were both then aged about 15 years.

The appellant sustained a head injury in the accident and was unable to give evidence of the accident.

However, a young woman, Kathryn Anne Ellis, who was with the appellant at the time, described the part of what occurred which she observed; it is noted however that she did not see the actual collision.

The only other eyewitness was Slater.

The appellant and Ms Ellis had ridden their motor cycles northward along a set of car tracks on the

recreation reserve, and, according to Ms Ellis, who was not accepted on the point by the trial judge,

she and the appellant turned, one to the left and the other to the right onto the side of the tracks,

intending to continue their turns and return along the tracks to the group with whom they had been in

company. The trial judge’s finding was that after travelling some distance, they pulled over to the

lefthand (western) side of the tracks and stopped and chatted.

The appellant was an inexperienced rider, as was known to Slater, who described her as a “novice”,

with “poor clutch control” who was “very bumpy - jerking” when starting. Slater left the group some

time after the appellant and Ellis had departed and travelled along the car tracks in the direction which

the appellant and Ellis had taken. According to Slater’s evidence, which was accepted by the trial

judge, he was riding along the right hand side car track when he noticed the appellant and Ms Ellis

stopped about 30 metres away and about 6 metres to the left hand side of the tracks. Their motor

cycles were in parallel and at right angles to the tracks, Ms Ellis’ motor cycle facing away, the

appellant’s leaning towards the tracks and they were sitting, talking. Both appeared oblivious of his

approach and the appellant was facing away from him. The collision occurred when the appellant’s

motor cycle suddenly moved onto the tracks, apparently intending to ride back with Ms Ellis to the

group from which first they, and later Slater, had earlier departed. As we understand the trial judge’s

brief reasons, Ms Ellis executed a semi-circle to bring her motor cycle back to the track whilst the appellant rode forward onto the track, intending to turn right, bringing her across Slater’s path. The trial

judge’s finding was the “the collision occurred on the eastern or right hand side of the tracks at a spot

some one metre to the right of the tracks” after “Slater did attempt to avoid a collision with the

[appellant’s] motor cycle by turning his cycle to the east”.

The judgment then continued:

“I find that the [appellant] was negligent in commencing to make the turn at a time when Mr Slater and his cycle were in the vicinity and a danger of collision existed. I find that Mr Slater had no reason to have foreseen that the [appellant] would move off across his path at a time when he was so close to her and able to be seen by the [appellant].

I consider that he was not found to anticipate that the [appellant] would do so even allowing for her lesser experience as a rider of motorcycles. The [appellant] was a quite sensible girl almost 15 years of age and known to him.

In my view, there was no reasonable possibility of danger emerging from the scene before Mr Slater. He was under no obligation to take extraordinary precautions. He was not bound to assume that the [appellant] would act in what may be described as an utterly irresponsible manner and plunge ahead with her intended move. Mr Slater was trapped by that movement.

Tomorrow the expression of the Honourable Mr Justice Stable in Soloman v. Ryan (1965) Queensland Reports 448 at pages 453 and 454, Mr Slater did not have to imagine bogies behind every stationary motorcycle in front of him. In the result I find that he was not guilty of any negligence.”

Not without some justification, in our view, the appellant criticised the trial judge’s acceptance of Mr

Slater’s account of the accident. There was unchallenged evidence from a friend of both the appellant

and Slater, O’Keefe, that, “only ... a matter of days after the accident”, he asked Slater what happened

and Slater replied that “he couldn’t really tell me what happened because all he knew was he was riding,

next minute he knew he was on the ground injured”. Less importantly, the appellant said that Slater also

informed her, about two to three days after the accident and while she was still in hospital, that he didn’t know how the accident had happened. Slater disputed the appellant’s account but, in his evidence in

chief, said that he told O’Keefe “that all I can remember is riding along and after the collision, that’s at

impact, I was knocked out; I can remember up to the impact and that was it”. In cross examination,

Slater said that he told both O’Keefe and the appellant that the appellant “cut me off”. The trial judge

made no reference to O’Keefe’s evidence of what Slater told him.

Additionally, a perusal of Slater’s evidence generally gives pause for doubt. He was surprisingly

assertive, if not aggressive, in his evidence, and evasive about his speed. The trial judge said that he was

“unable to find the speed of Mr Slater’s cycle but his evidence does not persuade us that he effected

any significant reduction in speed because his intention was not to stop and talk to the two girls”. That

finding does not sit entirely comfortably with an earlier finding, also based on Slater’s evidence, that

Slater “set out after [the appellant] and Ms Ellis on his motorcycle ...” his intention being to see how they

were. No reference was made by his Honour to the fact that Mr Slater was riding a 250cc motorcycle

which had a top speed of 120 kph. Further, there is no express acceptance by the trial judge of Mr

Slater’s evidence that he was “what you call a social rider. I sit same speed most of the times which

is a leisurely ride so I can relax. I do it for fun.” Later, he added:

“As I approached the group of two girls, I was more alert. I wasn’t watching the

speedo but my speed could have dropped.”

He went on to say that it “could have dropped five or so kilometres” but he “would not know”.

Finally, it should be noted that Slater gave no warning of his approach and it is clear from his evidence

that he knew that the appellant and Ms Ellis were unaware of his approach.
As this Court has previously noted, for example, in Tamwoy v. Solomon (Appeal No. 76 of 1995,

unreported, 10 October 1996), apportionment of liability is not lightly reviewed by an appellate court;

such appeals, which involve subjective assessment of factors as to which there might well be differences

of opinion by different minds, are strongly to be discouraged unless error is plain. Nonetheless, in our

opinion, this is a case where interference is appropriate. Giving full weight to every advantage enjoyed

by the trial judge, his Honour’s reasons seem to us to gloss over those aspects of Slater’s conduct

which contributed to the collision, his failure to warn and his continuing at much the same speed when

it appeared that both the appellant and Ms Ellis were oblivious of his approach. Counsel for the

respondent referred to McHale v. Watson (1966) 115 C.L.R. 199, but, other considerations aside,

nothing can be gleaned from that decision which assists the respondent in the present circumstances in

which both motor cycle riders were in their mid-teens.

We are satisfied that negligence on the part of Slater contributed to the collision. Acting so far as

possible consistently with the approach adopted by the trial judge, we would apportion one-third of the

responsibility to Slater.

The trial judge assessed the appellant’s damages at $65,139.00, and there was no appeal in respect

of quantum. Accordingly, she should, in our opinion, be awarded $21,713.00.

In summary, we would allow the appeal with costs to be taxed, set aside the judgment below, and order

that judgment be entered for the appellant in the sum of $21,713.00 and that the respondent pay the

appellant’s taxed costs of and incidental to the action.