Elphick v Elliott - [2002] QSC 189

SUPREME COURT OF QUEENSLAND

CITATION: Elphick v Elliott & Anor [2002] QSC 189

PARTIES: JASON DREW ELPHICK
(Plaintiff)
v
GRAHAM JOSEPH ELLIOTT
(First Defendant)
and
MMI GENERAL INSURANCE (ACN 000122850)
(Second Defendant)

FILE NO: S22 of 1999

DIVISION: Trial Division

DELIVERED ON: 27^thJune 2002

DELIVERED AT: Rockhampton

HEARING DATE: 14^th, 15^th , 16^th and 17^th May 2002

JUDGE: Dutney J

ORDERS:Judgement for the plaintiff against the second defendant for the sum of $97,008.24.

CATCHWORDS: NEGLIGENCE – PERSONAL INJURIES – LIABILITY & QUANTUM – CONTRIBUTORY NEGLIGENCE – MOTOR VEHICLES - Pl overtaking vehicle turning right without indicating

Jones v Rice (1987) 6 MVR 77 – referred
McCutcheon v Muirl (1989) 6 MVR 202 – referred
Cross v Callaghan (1987) 6 MVR 504 - referred

COUNSEL:D.V. McMeekin SC, with him Mr AG Crow for the Plaintiff.
F.G. Forde for the first and second Defendants.

SOLICITORS: Klein and Associates (town agents John Murphy & Co) for the Plaintiff.

McMahons National Lawyers ( town agents Grant & Simpson) the first and second Defendants.

Liability

Jason Drew Elphick (“the plaintiff”) was born on 4^th January, 1973. On 17 May 1996 in Gladstone he was involved in a motor vehicle accident which is the subject of these proceedings. At the time of the accident the plaintiff was 23 years old.

The circumstances of the accident are in dispute. These facts are, however, common ground. The accident occurred in Beak Street at the intersection of Teak Street. The plaintiff had been riding his motor bike from the Dawson Highway. He turned right into Shaw Street, which becomes Beak Street after making a right angle sweeping bend. The plaintiff proceeded east on Shaw Street. After rounding the sweeping bend where Shaw Street becomes Beak Street, Beak Street rises to a crest. It then flattens out for some distance before falling away towards Teak Street over a distance of some hundreds of metres. After the Teak Street intersection it rises again. From the bend where Shaw Street becomes Beak Street the road is straight down the hill to Teak Street and up the other side past Teak Street. Teak Street intersects from the right traveling in this direction and does not cross Beak Street. Almost opposite the intersection or perhaps a few metres prior to it on the left is an engineering shop with a sealed parking bay adjacent to Beak Street. A few metres past the Teak Street intersection (on the right) Luscombe Street intersects with Beak Street on the left. The photographs suggest that there are two residential allotments between the engineering shop and the corner of Luscombe Street.

The plaintiff was riding a Kawasaki 250 motor bike on a learner’s permit. His accompanying rider was a Mr Oakey, a long time family friend. Mr Oakey was riding a Suzuki 750. The accident was the result of a collision between the plaintiff’s bike and an unregistered Dodge Utility driven by a Mr Elliott. A permit had been obtained…

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.

Continue reading Elphick v Elliott

Details

AGLC: Elphick v Elliott [2002] QSC 189
Case: [2002] QSC 189
Decision Date: 27 June 2002

CaseChat Overview and Summary

The Supreme Court of Queensland dealt with a case involving Jason Drew Elphick, who sought damages for personal injuries sustained in a motor vehicle accident. Elphick was riding a motorbike and collided with a Dodge utility vehicle driven by Graham Joseph Elliott, which was owned by MMI General Insurance. The primary legal issues were determining the liability for the accident and the quantum of damages, including consideration of contributory negligence on Elphick's part. The court had to evaluate various testimonies from witnesses, including Elphick, his accompanying rider, the driver of the Dodge, and the owner of the vehicle.

The court found that both parties were negligent: Elphick for attempting to overtake two vehicles at an intersection in an unsafe manner, and Elliott for driving a vehicle with potentially defective indicator lights and failing to properly check for following vehicles before turning. The court concluded that Elphick must bear 60% of the responsibility for the accident due to his dangerous overtaking manoeuvre. This finding significantly reduced the total damages awarded to Elphick.

Regarding quantum, the court assessed Elphick's injuries and their impact on his life. Elphick sustained multiple injuries including fractures, internal injuries, and a head injury. The court allowed damages for pain and suffering, loss of past and future earnings, domestic assistance, and future medical expenses. Despite the severity of his injuries, the court found that Elphick had exaggerated some of his symptoms and the extent of his care needs. Consequently, the court awarded a total of $242,520.60 in damages, which was reduced by 60% due to Elphick's contributory negligence, resulting in a net award of $97,008.24 to Elphick against MMI General Insurance.

Orders